1. Introduction
The legal status of the prohibition on gender-based violence against women under international law is contested. The principal treaty on women’s rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),Footnote 1 does not contain a provision on violence against women as such. In 1992, the body mandated to monitor implementation of the Convention, the CEDAW Committee, adopted a general recommendation on the subject, which provides that the definition of discrimination against women in Article 1 CEDAW ‘includes gender-based violence’ against women.Footnote 2 However, general recommendations and general comments of United Nations (UN) human rights treaty bodies are not binding.
Accordingly, some influential actors have taken the view that, aside from the regional treaties which address the issue, the prohibition is set out only in soft law. For example, the then Special Rapporteur on Violence against Women, Its Causes and Consequences, Rashida Manjoo, has highlighted ‘that a normative gap exists at the international level’.Footnote 3 However, others, such as Manjoo’s successor, Dubravka Šimonović, have contended that States have accepted the CEDAW Committee’s general recommendations on the subject.Footnote 4
There are also mixed views on whether there are any rules of customary international law on the issue. The CEDAW Committee has taken the view that there is a customary prohibition on gender-based violence against women,Footnote 5 and Special Rapporteur Yakin Ertürk has indicated that there is a customary obligation for States to act with due diligence in preventing and responding to violence against women.Footnote 6 By contrast, Special Rapporteur Manjoo has contended that ‘none of the soft law developments on violence against women has moved into the realm of customary international law as yet’Footnote 7 and, writing in a personal capacity, has described the CEDAW Committee’s conclusion as ‘questionable’.Footnote 8 Actors on both sides of the debate have tended to set out their claims by assertion,Footnote 9 or by reference to judgments of courts and tribunals and expert bodies,Footnote 10 rather than through traditional approaches to the identification of customary international law.Footnote 11
This article explores the legal status of the prohibition of gender-based violence against women under international law.Footnote 12 It commences in Section 2 with a consideration of whether, as per the CEDAW Committee’s General Recommendation 19, the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women. The issue is important as, if gender-based violence against women falls within the definition of discrimination against women in Article 1 CEDAW, the obligations for States Parties in respect of tackling discrimination against women will apply also to tackling gender-based violence against women. This, in turn, would mean that States Parties are under an obligation, inter alia, to: adopt legislation, including where appropriate sanctions, prohibiting gender-based violence against women; to refrain from engaging in gender-based violence against women; and ‘[t]o take all appropriate measures to eliminate’ gender-based violence against women ‘by any person, organization or enterprise’.Footnote 13
Whether gender-based violence against women does fall within the definition of discrimination against women in Article 1 CEDAW is ultimately a question of treaty interpretation. Focusing on Article 31(3)(b) of the Vienna Convention on the Law of Treaties (VCLT), Section 2 considers whether the subsequent practice of States Parties to CEDAW in the application of CEDAW establishes the agreement of the parties that the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women. It finds that the subsequent practice of States Parties does establish such an agreement, which has two consequences. First, gender-based violence against women is prohibited as a matter of treaty law and not just soft law. Second, there is a conventional obligation on the part of States Parties to act with due diligence to eliminate gender-based violence against women.Footnote 14
Building on that finding, in Section 3 the article considers whether certain provisions of CEDAW, as interpreted by the CEDAW Committee and States Parties to CEDAW, have generated rules of customary international law. This, too, is important, not least for the States which are not parties to CEDAW, but also owing to the different ways in which custom and treaties are received in domestic legal systems and in light of the binding nature of customary international law on international legal persons in addition to States. Specifically, Section 3 analyses the relationship between treaties and customary international law and argues that the conventional prohibition on gender-based violence against women and the conventional obligation of States to act with due diligence to eliminate gender-based violence against women, identified in Section 2, have generated rules of customary international law. The large number of States Parties to CEDAW has not proved an obstacle to the generation of these customary rules.
2. Gender-based violence against women within the CEDAW framework
2.1. General recommendations of the CEDAW Committee
2.1.1. Violence against women in general recommendations
CEDAW does not contain a provision on violence against women as such.Footnote 15 During the drafting of CEDAW, Belgium proposed the inclusion of an article on ‘attacks on the physical integrity of women’.Footnote 16 However, the proposal was not adopted. Accordingly, in 1989, the CEDAW Committee adopted General Recommendation 12, in which the Committee recommended that States Parties include information in their periodic reports to the Committee on measures they have taken to protect women from violence.
A few years later, in 1992, the CEDAW Committee adopted General Recommendation 19. In that Recommendation, the CEDAW Committee stated, inter alia, that the definition of discrimination against women in Article 1 CEDAW ‘includes gender-based violence’ and that ‘[g]ender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence’.Footnote 17 Gender-based violence was thus read into the CEDAW. General Recommendation 19 continued:
Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention.Footnote 18
The rights and freedoms in question were said to include the right to life, the right not to be subject to torture and the right to just and favourable conditions of work.Footnote 19 General Recommendation 19 also provided that ‘[t]he full implementation of the Convention required States to take positive measures to eliminate all forms of violence against women’ and that ‘under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise’.Footnote 20
In 2017, the CEDAW Committee adopted General Recommendation 35, which updated General Recommendation 19.Footnote 21
2.1.2. The legal status of general recommendations
Like general comments of other treaty bodies, general recommendations of the CEDAW Committee are not binding. Nonetheless, other international law bodies give their interpretations ‘great weight’,Footnote 22 although their reception in domestic law varies considerably.Footnote 23 Owing to their non-binding nature, some have suggested that, as a matter of treaty law, CEDAW does not include ‘binding provisions’ on gender-based violence against women.Footnote 24 Rather, in their view, the prohibition has only been set out in soft law pronouncements.Footnote 25 For example, Special Rapporteur Manjoo has argued that ‘[t]here are many “soft law” documents that address the issue, including … general comments and recommendations of treaty bodies’, but ‘[a]lthough soft laws may be influential in developing norms, their non-binding nature effectively means that States cannot be held responsible for violations’.Footnote 26
2.2. Subsequent practice establishing agreement regarding the interpretation of CEDAW
This section interrogates the contention that CEDAW does not include binding provisions on gender-based violence against women. It assesses whether, through the subsequent practice of States Parties to CEDAW, the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women.
Article 31 VCLT sets out the ‘general rule of interpretation’. Although the VCLT entered into force after CEDAW had been adopted, that general rule of interpretation is widely accepted as reflecting customary international lawFootnote 27 and applicable to treaties adopted prior to the entry into force of the VCLT. Article 31 provides that:
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1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
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2. …
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3. There shall be taken into account, together with the context:
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a. …
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b. any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.
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The UN Human Rights Committee (HRC) had suggested, in a draft general comment, that its ‘general body of jurisprudence’ constitutes subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation for the purposes of Article 31(3)(b) VCLT or, in the alternative, that ‘the acquiescence of States parties in those determinations constitutes such practice’.Footnote 28 The International Law Association Committee on International Human Rights Law and Practice (ILA Committee) had also considered it ‘arguable’ that the pronouncements of treaty bodies could satisfy Article 31(3)(b). It contended that:
[t]he reference in article 31 to subsequent practice – as with so many other provisions in the VCLT – is written as if no monitoring body had been established by a treaty, as if no third-party interests existed, and as if it were only for other States to monitor each other’s compliance and to react to non-compliance. Human rights treaties are different in some important respects from the presumed ideal type of a multilateral treaty which underpins the formulation of the individual provisions of the VCLT.Footnote 29
And the HRC used the ILA Committee’s reasoning to support the position in its draft.Footnote 30
However, the first approach of the HRC, namely that the jurisprudence of treaty bodies themselves satisfies Article 31(3)(b), has gained little traction. Indeed, a number of States explicitly rejected the approach. The United States (US) considered the argument ‘extraordinary’,Footnote 31 the United Kingdom (UK) stated that it ‘rejects the assertion’Footnote 32 and Australia and New Zealand indicated that that position did ‘not accurately reflect the position under international law’.Footnote 33 Belgium and Poland also disagreed with the HRC’s explanation.Footnote 34 Following these States’ comments, the HRC removed the statement from the final version of its general comment.Footnote 35
A few years later, the International Law Commission (ILC) Special Rapporteur on Subsequent Agreements and Subsequent Practice would explain:
A pronouncement of an expert body under a human rights treaty cannot, as such, constitute subsequent practice under article 31, paragraph 3 (b), since that provision requires that a subsequent practice in the application of the treaty establishes the agreement of the parties.Footnote 36
And the ILC Drafting Committee considered this proposition ‘self-evident’.Footnote 37 A number of States also expressed their agreement with this conclusion.Footnote 38
Although general comments and general recommendations of UN human rights treaty bodies do not themselves constitute ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’, they can catalyse such subsequent practice. Pronouncements of a human rights treaty body might well ‘give rise to’Footnote 39 ‘subsequent practice by the parties which establish their agreement regarding the interpretation of the treaty’ under Article 31(3)(b) VCLT. That position is accepted by many States,Footnote 40 the ILCFootnote 41 and academics.Footnote 42
This section considers whether the CEDAW Committee’s General Recommendation 19 (together with General Recommendations 12 and 35) acted as a catalyst for State practice on the interpretation of Article 1 CEDAW. It also considers whether this subsequent practice of States Parties to CEDAW has established their agreement regarding the interpretation of CEDAW, namely that the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women.
2.2.1. The importance of subsequent practice
As the ILC has indicated, ‘[t]he interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32’.Footnote 43 This means that, at times, subsequent practice of States Parties in the application of the treaty might be of particular importance.Footnote 44 Indeed, the International Court of Justice (ICJ), in the Kasikili/Sedudu case, described the importance of subsequent practice as ‘obvious’, explaining that ‘it constitutes objective evidence of the understanding of the parties as to the meaning of the treaty’.Footnote 45 For this reason, courts and tribunals have had regard to it frequently in interpretating a treaty.Footnote 46
Despite the importance of subsequent practice for the interpretation of a treaty, the ILC has suggested that there are some hurdles with respect to treaties, such as CEDAW, which have an expert treaty body attached to them. In the view of the ILC, the sheer number of parties to treaties which have an expert body means that establishing that all parties have accepted a particular pronouncement of a treaty body as expressing a particular interpretation of a treaty ‘is not easily achieved in practice’.Footnote 47
Whilst not easily achieved, the mandate of a UN human rights treaty body lends itself to serving as a catalyst for generating subsequent practice of States Parties to the treaty. Human rights treaty bodies have a mandate, inter alia, to issue general comments/recommendations; receive State Party reports and issue concluding observations on them; receive individual and inter-State communications and issue Views on them; and conduct inquiries.Footnote 48 Once a treaty body adopts an interpretation of a treaty provision in its general comment/recommendation, it will tend to use that same interpretation in its interactions with individual States, for example, in its list of issues prior to reporting, concluding observations on State Party reports and Views. Indeed, the CEDAW Committee’s guidance note on the preparation of State Party reports indicates that States Parties should report on gender-based violence against women.Footnote 49 States Parties, in turn, tend to engage with that interpretation in their reports to the treaty body and in arguments in the context of individual communications. Accordingly, the documents produced by States Parties in their interactions with the treaty body provide a useful source of information on their positions.
2.2.2. The elements of Article 31(3)(b) VCLT
As set out in Section 2.2, Article 31(3)(b) VCLT refers to ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. Accordingly, for gender-based violence against women to form part of the definition of discrimination against women in Article 1 CEDAW, four elements must be met.Footnote 50 First, there must be ‘practice’. Second, that practice must be ‘subsequent’ practice. Third, that subsequent practice must be ‘in the application of’ CEDAW. And fourth, it must ‘establish the agreement of the parties’ regarding the interpretation of the CEDAW.
2.2.2.1. ‘Practice’
The first element is that there must be practice. Practice includes ‘any “conduct” in the application of a treaty’.Footnote 51 It can take a variety of forms and will vary depending on the treaty.Footnote 52 It may include acts, omissions and silence.Footnote 53 In the present context, particular emphasis will be placed on States Parties’ reports to the CEDAW Committee and the underlying domestic practice to which the reports refer as well as arguments of States Parties as part of the CEDAW communications procedure. These reports and arguments are official communications under CEDAW and its Optional Protocol and are also of direct relevance to States Parties’ understandings of their obligations.Footnote 54 In addition, relevant practice includes resolutions of the UN General Assembly, the Commission on Human Rights and the Human Rights Council.
As will be seen in Section 2.2.3, much of the practice in question tends not to be found in a joint document of all the States Parties to CEDAW, or in an exchange of documents between the parties. Rather, they are found in parallel exchanges of documents between individual States Parties and the CEDAW Committee. As the ILC Special Rapporteur concluded, a ‘merely parallel conduct may suffice’, although ‘[i]t is a separate question whether parallel activity of such a kind actually articulates a sufficient common understanding (agreement) regarding the interpretation of a treaty in a particular case’.Footnote 55
In the Bay of Bengal Maritime Boundary Arbitration, the arbitral tribunal indicated that an exchange of letters between government officials of Bangladesh and India was not ‘sufficiently authoritative to constitute … a subsequent agreement between the Parties’. However, that was due to the ‘low-level’ and brevity of the ‘exchange of correspondence between civil servants’Footnote 56 and not because it took the form of parallel documents. In the present context, the documents are official documents of the State Party concerned, issued to the body authorised to receive them and submitted pursuant to the party’s treaty obligations.
Given that much of the practice in question cannot be found in a joint document of all the States Parties, one question that arises relates to the required frequency of practice and, in particular, whether one-off practices by States are sufficient. There is some support for the position that what is necessary for demonstrating agreement is a ‘“concordant, common and consistent” sequence of acts or pronouncements’.Footnote 57 However, as the overarching question for the purposes of Article 31(3)(b) is whether the practice ‘establishes the agreement of the parties regarding its interpretation’, the better view is that frequency of practice goes to evidence of agreement rather than constituting a requirement for proving agreement.Footnote 58 Indeed, the practice of all the parties is not needed, only the agreement of all of them. The greater the frequency of practice, the easier it will be to demonstrate agreement on the part of the parties. But a one-time practice will suffice providing it establishes the agreement of the parties.Footnote 59 In any event, in the present context, there is a regularity of practice.
2.2.2.2. ‘Subsequent’ practice
The second element is that the practice must be ‘subsequent’ practice, i.e. practice subsequent to the ‘conclusion’ of the treaty.Footnote 60 Although questions have arisen regarding the exact point after which the practice is to have taken place, for example, whether it is after the adoption of the treaty and its opening for signature or after the entry into force of the treaty,Footnote 61 that is not relevant for present purposes. All the practice discussed has taken place after the entry into force of CEDAW.
2.2.2.3. Subsequent practice ‘in the application of the treaty’
The third element is that the subsequent practice must be in the application of the treaty. As Dörr and Schmalenbach have explained, the parties must ‘act the way they do for the purpose of fulfilling their treaty obligations, i.e. their subsequent conduct must be motivated by treaty obligations’.Footnote 62 For its part, the ILC has given an indication of the sorts of practices which might be relevant:
This includes not only official acts at the international or at the internal level that serve to apply the treaty, including to respect or to ensure the fulfilment of treaty obligations, but also, inter alia, official statements regarding its interpretation, such as statements at a diplomatic conference, statements in the course of a legal dispute, or judgments of domestic courts; official communications to which the treaty gives rise; or the enactment of domestic legislation or the conclusion of international agreements for the purpose of implementing a treaty even before any specific act of application takes place at the internal or at the international level.Footnote 63
As indicated in Section 2.2.2.1, much of the practice in question consists of reports by States Parties pursuant to their obligations under the treaty to ‘report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect’.Footnote 64 These are submitted to the treaty body mandated to monitor implementation of the treaty. Other practice consists of States Parties’ responses to individuals bringing communications against them pursuant to the Optional Protocol to the treaty, alleging violation of the treaty.Footnote 65 All such practice constitutes subsequent practice in the application of CEDAW.
Given that States Parties report on a variety of provisions of CEDAW and not just its Article 1, one question that arises is whether subsequent practice in the application of other provisions of CEDAW can be taken into account. In the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization Advisory Opinion, the ICJ answered the question in the affirmative. When seeking to interpret Article 28(a) of the Convention establishing the Inter-Governmental Maritime Consultative Organization, it considered the practice of the parties in the application of other provisions of the Convention.Footnote 66 Thus, regard may be had here to practice in the application of other provisions of CEDAW.Footnote 67
As will be seen, some of the subsequent State practice is not directly on the definition of discrimination against women in Article 1 CEDAW. It also concerns the impact of gender-based violence against women on particular rights and the measures that the State Party has taken to address gender-based violence against women in the context of those rights. As the CEDAW Committee explained, ‘[g]ender-based violence, which impairs or nullifies the enjoyment by women of human rights … is discrimination within the meaning of article 1 of the Convention’.Footnote 68 And the rights in question include, for example, the right to just and favourable conditions of work.Footnote 69 Thus, if a State Party reports on measures it has taken to eliminate gender-based violence in the context of the CEDAW provision on the elimination of discrimination against women in the field of employment, for example, on sexual harassment, the State is accepting that gender-based violence against women is discrimination against women within the meaning of Article 1 CEDAW. Indeed, CEDAW is the Convention on the Elimination of All Forms of Discrimination against Women. If gender-based violence did not fall within the meaning of discrimination, it would not be within the scope of the Convention. Thus, when States Parties report to the CEDAW Committee on matters of gender-based violence against women, they are implicitly accepting that it constitutes discrimination against women.
2.2.2.4. Subsequent practice ‘establish[ing] the agreement of the parties regarding its interpretation’
The fourth and final element is that the subsequent practice must establish the agreement of the parties regarding the interpretation of the treaty, namely that the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women. As intimated by the ILC, this is the more difficult of the requirements to satisfy, given that, as at 18 February 2026, there are 189 States Parties to CEDAW, and the reference to ‘the parties’ means to ‘all the parties’.
Two aspects warrant particular comment. First, the question arises as to whether the agreement is required to take a particular form. Although, in the case of multilateral treaties, when looking for agreement on the part of States Parties as to the interpretation of a treaty provision, interpreters have tended to look at resolutions,Footnote 70 that is by no means a requirement.Footnote 71 As the Beagle Channel arbitral tribunal put it, ‘[t]he terms of the Vienna Convention do not specify the ways in which “agreement” may be manifested’.Footnote 72 Indeed, ‘any identifiable agreement of the parties is sufficient’.Footnote 73 Insofar as human rights treaties which benefit from a treaty body are concerned, as discussed in Section 2.2.1, the very existence of such a body, with its mandate to issue general comments, Views and concluding observations, lends itself to act as a catalyst for the generation of subsequent practice of States in their engagement with the treaty body. And some States themselves have noted the possible catalytic effect of pronouncements of treaty bodies.Footnote 74 It is in the nature of these bodies that the agreement of States Parties will be evidenced through a series of bilateral documents between individual States Parties and the treaty body rather than a joint document of all States Parties.
The second issue concerns the role of silence on the part of individual States Parties. It is widely accepted that the agreement must be that of all the parties, though that does not require that ‘every party must individually have engaged in the practice’.Footnote 75 Nonetheless, involvement in the practice is the ‘clearest evidence’ of the agreement.Footnote 76
The ILC has explained how to interpret the silence of States Parties in relation to a pronouncement of an expert treaty body. Conclusion 13(3) provides that ‘[s]ilence by a party shall not be presumed to constitute subsequent practice under article 31, paragraph 3 (b), accepting an interpretation of a treaty as expressed in a pronouncement of an expert treaty body’. The emphasis in that Conclusion is arguably misleading. The general rule, expressed in Conclusion 10(2), provides that ‘[s]ilence on the part of one or more parties can constitute acceptance of the subsequent practice when the circumstances call for some reaction’.Footnote 77 This position is frequently reiterated in the jurisprudence.Footnote 78 As the Commentary to Conclusion 13(3) explains, Conclusion 13(3) ‘does not purport to recognize an exception to this general rule, but rather intends to specify and apply this rule to the typical cases of pronouncements of expert bodies’.Footnote 79 Accordingly, even in regard to a pronouncement of an expert treaty body, silence on the part of a State Party can constitute acceptance of the subsequent practice; much turns on whether the circumstances call for some reaction.
According to the ILC, ‘[t]he “circumstances” that will “call for some reaction” include the particular setting in which the States parties interact with each other in respect of the treaty’.Footnote 80 Importantly, the ILC drew a distinction between treaty body pronouncements which were directed at a single State and those directed at other States Parties or States Parties generally, noting that:
[I]t cannot usually be expected that States parties take a position with respect to every pronouncement by an expert treaty body, be it addressed to another State or to all States generally. On the other hand, State parties may have an obligation, under a duty to cooperate under certain treaties, to take into account and to react to a pronouncement of an expert treaty body that is specifically addressed to them, or to individual communications regarding their own conduct.Footnote 81
2.2.3. The relevant practice evidencing agreement
The subsequent practice at issue consists primarily of State Party reports to the CEDAW Committee, as well as arguments made in the context of individual communications. The practice can be divided into five sorts, although some of them bleed into others. They are: reiterations of General Recommendation 19;Footnote 82 taking measures pursuant to General Recommendation 19; explicit references to General Recommendation 19 in their reporting on gender-based violence against women; reporting on measures taken in response to a question posed by the CEDAW Committee which explicitly mentions General Recommendation 19; and reporting on measures taken to eliminate gender-based violence against women without mentioning General Recommendation 19.
A number of States Parties have reiterated General Recommendation 19 in a way that suggests that they agree with the Recommendation. For example, Nicaragua noted that, ‘[i]n its general recommendation No. 19 … the Committee on the Elimination of Discrimination against Women took the important decision to officially broaden the general prohibition of gender discrimination to include gender-based violence’.Footnote 83 And Brazil reiterated that General Recommendation 19 stated that the definition of discrimination in Article 1 CEDAW includes ‘violence on the basis of sex’.Footnote 84 Other States reiterating General Recommendation 19 include the Bahamas,Footnote 85 Canada,Footnote 86 Denmark,Footnote 87 Haiti,Footnote 88 ItalyFootnote 89 and Malaysia.Footnote 90
The domestic courts of some States have also cited General Recommendation 19. Georgia, for example, indicated that, ‘[i]n a decision of 23 April 2020, while deliberating on the case of domestic violence against a woman, the Akhaltsikhe District Court refers to the provisions of the Convention and the CEDAW General Recommendation No. 19: Violence against women’.Footnote 91 Other domestic courts which have referred to General Recommendation 19, seemingly with approval, include the Supreme Court of Bangladesh,Footnote 92 the Supreme Court of IndiaFootnote 93 and the Supreme Court of the Philippines.Footnote 94
Some States Parties have also referred to General Recommendation 19, seemingly with approval, in their arguments to the CEDAW Committee in the context of individual communications, as was the case with Canada,Footnote 95 Denmark,Footnote 96 Georgia,Footnote 97 ItalyFootnote 98 and the Netherlands.Footnote 99 Others, such as Kazakhstan, have reported on the implementation of Views where those Views refer to and follow General Recommendation 19.Footnote 100
Still other States Parties have explained that they have taken measures pursuant to General Recommendation 19. In this vein, Gambia reported that its Sexual Offences Act 2013 had defined sexual harassment ‘in accordance with General Recommendation No. 19’.Footnote 101 And the Philippines reported that, ‘[i]n response to General Recommendation No. 19, [it] enacted two laws to address VAW’.Footnote 102 Other States doing the same include Argentina,Footnote 103 Azerbaijan,Footnote 104 Belgium,Footnote 105 Bosnia and Herzegovina,Footnote 106 Burundi,Footnote 107 China,Footnote 108 Colombia,Footnote 109 Cuba,Footnote 110 Equatorial Guinea,Footnote 111 Honduras,Footnote 112 Iraq,Footnote 113 Republic of Korea,Footnote 114 Lithuania,Footnote 115 Mauritius,Footnote 116 Mexico,Footnote 117 Norway,Footnote 118 Oman,Footnote 119 Paraguay,Footnote 120 Slovakia,Footnote 121 South Africa,Footnote 122 TanzaniaFootnote 123 and Timor-Leste.Footnote 124
Some States Parties have explicitly mentioned General Recommendations 12 and/or 19 in their reporting on violence against women, in a way which suggests that they agree with the approach adopted in these Rcommendations. For example, Brunei Darussalam reported to the CEDAW Committee on violence against women ‘[i]n light of Recommendation 12 & 19’.Footnote 125 And Portugal’s report reads: ‘[t]aking into account the CEDAW Committee’s Recommendations No 19 and No 12, regarding the obligation of States to report on violence against women, Portugal presents the following information under this topic’.Footnote 126 Other States which have reported similarly include Chile,Footnote 127 Ghana,Footnote 128 Guyana,Footnote 129 Jordan,Footnote 130 Maldives,Footnote 131 Nepal,Footnote 132 Seychelles,Footnote 133 ThailandFootnote 134 and Vanuatu.Footnote 135 For its part, Saint Vincent and the Grenadines indicated that ‘no specific action’ has been taken with respect to ‘sexual harassment at the workplace (General Recommendation No. 19)’.Footnote 136 In so explaining, the State implicitly accepts General Recommendation 19.
Numerous States Parties have reported on measures they have taken to eliminate violence against women in response to a question posed by the Committee which explicitly mentions General Recommendation 19. For example, the relevant section of Lao People’s Democratic Republic’s report commences with the CEDAW Committee’s question before answering it. It reads as follows:
In line with the Committee’s general recommendation No. 19 and further to the Committee’s previous concluding comments (see para. 36), please provide information on the scope of all forms of violence against women and legislative and other measures taken to combat such violence.
…
Based on the Law on the development and protection of women, there are two kinds of violence against women: physical and emotional violence or damages to asset. The scope of violence remains pervasive, from the domestic to the public domain, including work places …Footnote 137
At times, the information can be found across different documents. For example, in the case of the Russian Federation, the CEDAW Committee stated in its Concluding Observations on Russia’s eighth periodic report:
22. Recalling its general recommendation No. 19 (1992) on violence against women, the Committee urges the State party:
(a) To adopt comprehensive legislation to prevent and address violence against women …Footnote 138
In Russia’s ninth periodic report, under the heading, ‘Paragraphs 21 and 22 of the concluding observations’, Russia informed the CEDAW Committee of its ‘efforts to prevent violence against women’ during the reporting period.Footnote 139
Along these lines, some 100 States Parties have reported on measures taken to eliminate violence against women in response to a question by the CEDAW Committee which explicitly refers to General Recommendation 19. This includes Afghanistan,Footnote 140 Albania,Footnote 141 Algeria,Footnote 142 Angola,Footnote 143 Armenia,Footnote 144 Australia,Footnote 145 Austria,Footnote 146 Benin,Footnote 147 Bahrain,Footnote 148 Bangladesh,Footnote 149 Barbados,Footnote 150 Belarus,Footnote 151 Belize,Footnote 152 Bhutan,Footnote 153 Botswana,Footnote 154 Bulgaria,Footnote 155 Burkina Faso,Footnote 156 Cabo Verde,Footnote 157 Cambodia,Footnote 158 Cameroon,Footnote 159 Central African Republic,Footnote 160 Chad,Footnote 161 Comoros,Footnote 162 Republic of the Congo,Footnote 163 Costa Rica,Footnote 164 Cote d’Ivoire,Footnote 165 Croatia,Footnote 166 Cyprus,Footnote 167 Czech Republic,Footnote 168 Dominican Republic,Footnote 169 Ecuador,Footnote 170 Egypt,Footnote 171 El Salvador,Footnote 172 Eritrea,Footnote 173 Eswatini,Footnote 174 Ethiopia,Footnote 175 Fiji,Footnote 176 Finland,Footnote 177 France,Footnote 178 Gabon,Footnote 179 Germany,Footnote 180 Greece,Footnote 181 Guatemala,Footnote 182 Hungary,Footnote 183 India,Footnote 184 Japan,Footnote 185 Kenya,Footnote 186 Kuwait,Footnote 187 Kyrgyzstan,Footnote 188 Latvia,Footnote 189 Lebanon,Footnote 190 Lesotho,Footnote 191 Liechtenstein,Footnote 192 Luxembourg,Footnote 193 Madagascar,Footnote 194 Mauritania,Footnote 195 Micronesia,Footnote 196 Monaco,Footnote 197 Mongolia,Footnote 198 Montenegro,Footnote 199 Morocco,Footnote 200 Myanmar,Footnote 201 Namibia,Footnote 202 New Zealand,Footnote 203 Niger,Footnote 204 North Macedonia,Footnote 205 Pakistan,Footnote 206 Peru,Footnote 207 Qatar,Footnote 208 Republic of Moldova,Footnote 209 Rwanda,Footnote 210 Saint Kitts and Nevis,Footnote 211 Samoa,Footnote 212 Sao Tome and Principe,Footnote 213 Saudi Arabia,Footnote 214 Serbia,Footnote 215 Sierra Leone,Footnote 216 Singapore,Footnote 217 Slovenia,Footnote 218 Spain,Footnote 219 Sri Lanka,Footnote 220 State of Palestine,Footnote 221 Suriname,Footnote 222 Sweden,Footnote 223 Switzerland,Footnote 224 Syrian Arab Republic,Footnote 225 Tajikistan,Footnote 226 Trinidad and Tobago,Footnote 227 Tunisia,Footnote 228 Türkiye,Footnote 229 Turkmenistan,Footnote 230 Uganda,Footnote 231 United Arab Emirates,Footnote 232 Uruguay,Footnote 233 Uzbekistan,Footnote 234 Yemen,Footnote 235 VenezuelaFootnote 236 and Zimbabwe.Footnote 237
The remaining 40 or so States Parties have reported to the CEDAW Committee on measures that they have taken to eliminate violence against women without referencing General Recommendations 12 and/or 19 in their reports. Some such States seem to refer implicitly to the General Recommendation(s). Notably, Djibouti indicated in its report that:
Having ratified the Convention without reservations, the Republic of Djibouti adopted the definition of discrimination against women, as set forth in the Convention, including the extension of its prohibition on gender-based violence …Footnote 238
And Togo reported that the prohibition on discrimination against women ‘extends to any violence against women’.Footnote 239
Although these 40 or so States Parties are silent on General Recommendations 12 and 19, as the reports of Djibouti and Togo indicate, they are not silent on the idea that violence against women falls within the scope of the Convention. If these States considered that violence against women did not fall within the auspices of the Convention, they would not have reported on the issue to the Committee mandated to monitor implementation of the Convention or they would have reported with a caveat that they do not accept the underlying premise.Footnote 240 Accordingly, even reporting on measures taken to eliminate violence against women without referencing General Recommendation 19 (and without a caveat) constitutes acceptance that violence against women falls within the auspices of the CEDAW and thus, by implication, that violence against women constitutes discrimination. The States in question are: Andorra,Footnote 241 Antigua and Barbuda,Footnote 242 Bolivia,Footnote 243 Cook Islands,Footnote 244 Democratic Peoples’ Republic of Korea,Footnote 245 Democratic Republic of the Congo,Footnote 246 Estonia,Footnote 247 Grenada,Footnote 248 Guinea,Footnote 249 Guinea-Bissau,Footnote 250 Iceland,Footnote 251 Indonesia,Footnote 252 Ireland,Footnote 253 Israel,Footnote 254 Jamaica,Footnote 255 Kiribati,Footnote 256 Liberia,Footnote 257 Libyan Arab Jamahiriya,Footnote 258 Malawi,Footnote 259 Mali,Footnote 260 Malta,Footnote 261 Marshall Islands,Footnote 262 Mozambique,Footnote 263 Nauru,Footnote 264 Nigeria,Footnote 265 Panama,Footnote 266 Papua New Guinea,Footnote 267 Poland,Footnote 268 Romania,Footnote 269 Saint Lucia,Footnote 270 San Marino,Footnote 271 Senegal,Footnote 272 Solomon Islands,Footnote 273 South Sudan,Footnote 274 Tuvalu,Footnote 275 Ukraine,Footnote 276 UK,Footnote 277 Viet NamFootnote 278 and Zambia.Footnote 279 For its part, Dominica has not submitted a periodic report to the Committee; it also failed to respond to the list of issues prepared by the Committee. However, the Committee held an interactive dialogue with Dominica in the absence of a periodic report and Dominica reported orally to the Committee on aspects of violence against women.Footnote 280
2.2.4. Conclusion
From this considerable practice, there is ‘the manifestation of an agreement’Footnote 281 of the parties to CEDAW regarding the interpretation of its Article 1. Although the practice is in the form of separate interactions between the 189 States Parties and the CEDAW Committee, the separate interactions evidence an agreement on the interpretation of the provision.
Importantly, the parties are also aware that they share a common position.Footnote 282 In the present context, the interactions between the CEDAW Committee and each individual State Party are known to other States Parties, as the interactions have taken place in public, spanned over 30 years and were generated by the CEDAW Committee’s general recommendations. Indeed, there is also joint practice between some of the parties supporting this conclusion. In a series of resolutions, the then Commission on Human Rights ‘[r]emind[ed] Governments that their obligations under the Convention on the Elimination of All Forms of Discrimination against Women must be fully implemented with regard to violence against women, taking into account General Recommendation No. 19’.Footnote 283 Some 101 States were members of the Commission in the period in which the resolutions were adopted.Footnote 284
The subsequent practice of States Parties thus establishes the agreement of all the parties regarding the interpretation of Article 1 CEDAW, namely that gender-based violence against women constitutes discrimination against women.Footnote 285 This does not mean that States have accepted every single aspect of General Recommendation 19. Indeed, at least one State has disagreed over non-refoulement.Footnote 286 Rather, States Parties have agreed that the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women.
The consequence is that, pursuant to Article 2 CEDAW, States Parties agree to condemn violence against women in all its forms and undertake, inter alia, to ‘adopt appropriate legislative and other measures … prohibiting’ violence against women, to ‘refrain from engaging in’ violence against women, and to ‘take all appropriate measures to eliminate’ violence against women ‘by any person, organization or enterprise’.Footnote 287 Or, to put it another way: (i) gender-based violence against women is prohibited; and (ii) States Parties must act with due diligence to eliminate gender-based violence against women.Footnote 288
One issue that arises is what these findings mean for purported rules of customary international law.
3. Customary international law
3.1. The interplay of treaties and custom
The relationship between a treaty rule and a customary one is multifaceted. As the ICJ has explained, a treaty rule might codify a preexisting rule of customary international law, lead to the crystallisation of an emerging customary rule, or generate a new one.Footnote 289
Violence against women emerged as an issue for the international community at the Nairobi World Conference on Women in 1985.Footnote 290 It came on to the international law agenda with the CEDAW Committee’s General Recommendation 19, which was adopted in 1992; the Declaration on the Elimination of Violence against Women (DEVAW), which was adopted in 1993; and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, which was adopted in 1994.Footnote 291 As the three instruments placed the issue on the international law agenda, they did not codify a pre-existing rule of customary international law nor did they crystallise a customary rule which was in the process of emerging.
In order to determine whether there is a customary rule relating to the prohibition on violence against women, it needs to be considered whether CEDAW, as interpreted by the CEDAW Committee, and in light of the subsequent practice establishing the agreement of the States Parties regarding its interpretation, has generated a rule of custom. Generation of a customary rule by a treaty rule is ‘one of the recognized methods by which new rules of customary international law may be formed’.Footnote 292 Yet, ‘[a]t the same time this result is not lightly to be regarded as having been attained’.Footnote 293
3.2. A treaty rule generating a customary rule
As the ICJ observed in the North Sea Continental Shelf cases, a treaty rule might generate a customary rule ‘partly because of [the treaty’s] impact, partly on the basis of subsequent State practice’.Footnote 294 The Court explained that this argument:
involves treating [the relevant treaty] Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention.Footnote 295
The Court provided guidance as to when such a situation would arise. First, the provision in question ‘should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law’.Footnote 296 Second, ‘a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected’.Footnote 297 Third, ‘State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’.Footnote 298 This latter point requires that ‘there be a general practice “in the sense of the provision invoked”, which is accepted as law by parties and non-parties alike’.Footnote 299
3.2.1. Fundamentally norm-creating character
Although some see the requirement that the treaty provision be of a fundamentally norm-creating character as circular,Footnote 300 it is commonly taken to mean that ‘the rule stated in the provision be generalizable so as to lend itself to possible application independently of the particular treaty context’.Footnote 301 That is to say, the rule should not be ‘the mere expression of contractual obligations’.Footnote 302
The two rules identified in Section 2.2.4, namely that (i) gender-based violence against women is prohibited and that (ii) States are obliged to act with due diligence to eliminate it, have been widely accepted outside the confines of the various treaties. They are routinely set out in other instruments, including DEVAW,Footnote 303 the Beijing Declaration and Platform for Action,Footnote 304 the UN General Assembly Resolution on Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action,Footnote 305 and the Agreed Conclusions of the fifty-seventh session of the Commission on the Status of Women on the elimination and prevention of all forms of violence against women and girls.Footnote 306
3.2.2. Widespread and representative participation in the Convention
The second aspect identified by the Court is that there be ‘a very widespread and representative participation in the convention … provided it included that of States whose interests were specially affected’.Footnote 307 The latter clause is less relevant for present purposes as there are no specially affected States in this context.
As seen in Section 2, although CEDAW does not contain a provision on violence against women as such, through the Committee’s General Recommendation 19 and the subsequent practice of States Parties in the application of the treaty, States Parties have reached agreement that the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women. At the time of writing, there are 189 State Parties to CEDAW. This is more than very widespread and representative participation in the treaty; there is near universal acceptance of the conventional rules.
Following the dictum of the Court, the very widespread and representative participation in CEDAW might be said to resolve the matter,Footnote 308 such participation being considered to suffice as evidence of both State practice and opinio juris. However, ironically, the determination of the existence of a rule of customary international law is made more challenging by the sheer number of States which are parties to the Convention. This is due to the need to determine whether the practice of the relevant State constitutes practice relating to its treaty obligations or whether the practice was based on a belief that there was a rule of customary international law requiring it.
In the North Sea Continental Shelf cases, on the facts, the Court stated that it could draw no inference as to the existence of a rule of customary international law from the actions of States Parties, or soon to be States Parties, to the Geneva Convention on the Continental Shelf because they were ‘presumably … acting actually or potentially in the application of the Convention’.Footnote 309 The Court seemed to be indicating that the practice of the parties was not supported by opinio juris since the practice was undertaken pursuant to their obligations, or soon to be obligations, under the convention.
Richard Baxter has described the ‘paradox’ thus:
the proof of a consistent pattern of conduct by non-parties becomes more difficult as the number of parties to the instrument increases. The number of participants in the process of creating customary law may become so small that the evidence of their practice may be minimal or altogether lacking. Hence the paradox that as the number of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty.Footnote 310
Although this is not, strictly speaking, a ‘genuine paradox’,Footnote 311 it does make it more complicated to discern a rule of customary international law.Footnote 312 As Yoram Dinstein has remarked, ‘proof of the specific conviction of Contracting Parties that their practice is required by custom — separately from, and independently of, the treaty — may be fraught with intractable difficulties’.Footnote 313
Accordingly, a number of suggestions have been made for ameliorating the difficulties. Fausto Pocar has suggested that the practice of States Parties to the treaty should be taken into account in determining the existence of a customary rule, as ‘the treaty itself is an important piece of State practice for the determination of customary law’ and ‘the impact that any subsequent practice of the contracting States in the application of the treaty which establishes their agreement or disagreement regarding its interpretation may bear on the development of a customary norm’.Footnote 314 Tullio Treves has made a similar point and noted that ‘the borderline separating practice that can be seen as interpretation, application or even modification of a convention, from that giving rise to new customary rules … is very thin indeed’.Footnote 315
Drawing on the jurisprudence of the Eritrea-Ethiopia Claims Commission, James Crawford has suggested ‘a presumption of opinio juris from wide participation in a treaty’.Footnote 316 Hugh Thirlway seems to share this view insofar as ‘humanitarian’ treaties are concerned because, in his view, ‘in the case of such a convention non-participation by a State is likely to be attributable less to rejection of the principles embodied in it than to (for example) inertia, political prejudice, etc’.Footnote 317 Thirlway has also indicated that it would be sufficient to consider the practice of States non-parties to the treaty, even if such States are limited in number as, although such States are creating a rule of ‘general custom’, the rule is ‘binding as such only on themselves – with the possible inclusion of an even smaller number of other non-convention States who have not put themselves in the position of “persistent objectors”’.Footnote 318
Although convenient, there are difficulties with some of these approaches. For example, it is not necessarily the case that non-participation in a humanitarian treaty is due to ‘inertia, political pressure, etc’ rather than ‘rejection of the principles embodied in [the treaty]’.Footnote 319 Nor is it clear why creation of a rule of general custom would be binding only on States non-parties to the treaty. It is in the very nature of general custom that it is binding on all States (subject to any persistent objectors) and thus it would be curious if a general rule could emerge from the practice of a handful of States. The point might be that the rule is binding on all States, but States Parties to the treaty would not be impacted by the customary status of the rule as they are anyway bound by the same rule qua treaty. Yet, the treaty rule and the customary rule ‘retain a separate existence’.Footnote 320 Furthermore, they may not be identical.Footnote 321 And different consequences might follow from each, such as in relation to the jurisdiction of a courtFootnote 322 and as regards who they bind.Footnote 323
3.2.3. Extensive and virtually uniform State Practice
A third aspect is whether State practice is extensive and virtually uniform in the sense of the provision invoked and has occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Even if a relaxation along the lines suggested by Crawford or Thirlway is not accepted, the difficulty in establishing relevant practice is not insurmountable despite the very large number of States Parties to CEDAW.
First, even States Parties to a treaty can indicate, subsequent to the conclusion of that treaty, that they intend ‘to accept more than a merely conventional norm’.Footnote 324 There may be good reason for this. States Parties may ‘not only want themselves to be bound as treaty parties’ but they may also ‘want to see these patterns of behaviour become general norms binding all states’.Footnote 325 Indeed, there are numerous examples of States Parties to a treaty and States non-parties to that treaty jointly indicating that they have an obligation to do certain things. As States non-parties are involved, the reference to the obligation would seem to be a reference to an obligation under general international law. Although this could theoretically be a reference to general principles of law,Footnote 326 owing to its specificity and given that general principles are either ‘derived from national legal systems’ or ‘formed within the international legal system’,Footnote 327 it is far more likely that it refers to an obligation arising under customary international law. This is most evident in resolutions on violence against women adopted by the UN General Assembly, Commission on Human Rights and Human Rights Council, which are discussed in Section 3.2.3.1.
Second, even States Parties to a treaty may act for reasons other than pursuant (solely) to a treaty obligation.Footnote 328 This is implicit in the Court’s statement in the North Sea Continental Shelf cases that treaty parties ‘presumably … act[] actually or potentially in the application of the Convention’.Footnote 329 As Crawford has indicated, a State Party to a treaty might ‘act[] as if a treaty provision has moved into custom, or believes that it has’.Footnote 330 Ultimately, this is a ‘question of proof rather than of principle’.Footnote 331 States acting for reasons other than pursuant to their conventional obligations can be seen most clearly in the reasons some States have given for enacting legislation on eliminating violence against women, discussed in Section 3.2.3.2.
Third, the practice and opinio juris of States non-parties to CEDAW may point to the existence of customary rules. It is widely accepted that the practice of States non-party to a treaty will be of particular relevance.Footnote 332 As Mark Villiger has indicated:
[r]ecognition of the customary rule – evidence of the opinio – and State practice can equally be found, for instance, when non-parties, without express reference to the conventional rule, continuously apply, inter se or vis-à-vis parties, the substance of the conventional rule qua customary law (or qua emerging customary law).Footnote 333
3.2.3.1 States’ acceptance of more than a conventional norm
General Assembly Resolutions
A good example of States Parties to CEDAW recognising obligations under customary international law on the elimination of violence against women are the UN General Assembly resolutions on the subject.
Resolutions of the General Assembly, although resolutions of the Assembly rather than of Member States, nonetheless ‘reflect the collective expression of the views of such States’ and, accordingly, ‘may afford an insight into the attitudes of the member States’.Footnote 334 They are particularly useful as the General Assembly has ‘virtually universal participation’.Footnote 335 Although a resolution ‘cannot, of itself, create a rule of customary international law’, it ‘may provide evidence for determining the existence and content of a rule of customary international law, or contribute to its development’.Footnote 336 And the ICJ has drawn on General Assembly resolutions extensively in certain cases.Footnote 337 As the Court put it in the Nuclear Weapons Advisory Opinion:
General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.Footnote 338
The ‘starting point’ is the ‘precise wording used’.Footnote 339 In a series of General Assembly resolutions, the General Assembly, drawing on the language of General Recommendation 19 and DEVAW, ‘re-emphasiz[ed] that violence against women and girls violates, and impairs their full enjoyment of, all human rights’.Footnote 340 Furthermore, in these resolutions, drawing on the language of General Recommendation 19, the General Assembly indicated that ‘States … must exercise due diligence to prevent, investigate and punish perpetrators of violence against women’.Footnote 341 The language of ‘must’ confirms that it is an obligation and departs from the language of Article 4 DEVAW which uses the word ‘should’. Indeed, certain other resolutions are clearer on the notion that States are under an obligation to act in a particular way. For example, in Resolution S-23/3 (2000), the General Assembly ‘accepted that States have an obligation to exercise due diligence to prevent, investigate and punish acts of violence’.Footnote 342
The bare references to ‘must’ and an unspecified ‘obligation’, coupled with the fact that States non-parties to CEDAW supported the resolutions, suggests that the obligations to which the resolutions refer are obligations under customary international law rather than under CEDAW.Footnote 343 Parties and non-parties to CEDAW alike are referencing the substance of the conventional rules, as interpreted by the CEDAW Committee, qua customary international law.
Also important are the ‘conditions of [the resolution’s] adoption’ or the ‘degree of support’ for the resolution.Footnote 344 Apart from two instances, all the resolutions were adopted without a vote. In the instances in which a vote was held, the resolutions were adopted by very significant majorities. Resolution 75/161 passed by 175-0-11 votes and Resolution 77/193 by 170-1-8 votes. The negative vote in respect of Resolution 77/193 came from Iran. However, Iran ‘subsequently informed the Secretariat that it had intended to abstain’.Footnote 345 The abstentions were for a variety of reasons,Footnote 346 but none related to the customary rules at issue. Numerous States also expressed their disappointment that a vote had been requested.Footnote 347 Although the ILC has indicated that ‘resolutions which attract negative votes or abstentions are unlikely to be regarded as reflecting customary international law’, as the ICJ has indicated, it is the degree of the negative votes or abstentions that is crucial.Footnote 348 It is suggested here that there is very considerable support for the resolutions. Some 15 General Assembly resolutions on the elimination of violence against women were adopted without a vote; two were adopted with a vote and passed by very large majorities. And the resolutions have been adopted regularly since 2000.
Commission on Human Rights and Human Rights Council resolutions
As the ILC has noted, ‘[r]esolutions adopted by organs … with more limited membership may also be relevant, but their weight in identifying a rule of customary international law is likely to be less’.Footnote 349 It is thus important to consider also resolutions of the Commission on Human Rights and its successor, the Human Rights Council.
The resolutions of these bodies confirm the reading of the General Assembly resolutions. Indeed, they are even clearer. Drawing on the language of General Recommendation 19 and DEVAW, the resolutions routinely ‘affirm’ or ‘re-emphasize’ that ‘violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms’.Footnote 350 Using the language of CEDAW, the resolutions also emphasise the ‘duty’ of States to ‘refrain from engaging in’ violence against women.Footnote 351 And drawing on the language of General Recommendation 19, the resolutions refer to a ‘duty’ to ‘exercise due diligence to prevent, investigate and … punish’ violence against women.Footnote 352 As with the General Assembly resolutions, States do not refer to their obligations under CEDAW in this regard. Instead, they are using the language, inter alia, of the conventional rule, as interpreted by the CEDAW Committee, as obligations under customary international law.
The resolutions do refer in places to obligations under CEDAW. They thus separate out the obligations of States generally from the obligations of States Parties to CEDAW. For example, the Commission on Human Rights’ Resolution 2002/52 ‘emphasizes the duty of Governments to refrain from engaging in violence against women and to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women …’ and simultaneously ‘[r]eminds Governments that their obligations under the Convention on the Elimination of All Forms of Discrimination against Women must be implemented fully with regard to violence against women, taking into account general recommendation 19’.Footnote 353 Given the latter explicitly refers to obligations under the Convention, the former refers to obligations arising outside the Convention.
Like the vast majority of the General Assembly resolutions, the resolutions of the Commission on Human Rights and the Human Rights Council have been adopted without a vote and adopted regularly since 1995.
Reliance in these resolutions on the treaty provisions,Footnote 354 as interpreted by the CEDAW Committee, suggests that the provisions generated rules which, while only conventional in origin, have ‘since passed into the general corpus of international law, and [are] now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention’.Footnote 355 Or to put it another way, States Parties to CEDAW have, through these resolutions, provided ‘their clear intention to accept more than a merely conventional norm’.Footnote 356 Customary law is being generated through the conventional rules, as interpreted by the CEDAW Committee, and the new customary rules thus have the same substance as the conventional rules, as interpreted by the CEDAW Committee.Footnote 357
3.2.3.2. States acting for reasons other than pursuant (solely) to a treaty obligation
States Parties to CEDAW have also acted other than pursuant to their treaty obligations. Numerous States have enacted legislation on eliminating violence against women. In enacting the legislation, some States have made clear that they are not acting solely pursuant to a conventional obligation. For example, the Maldives, in its Domestic Violence Act, has indicated that one of the purposes of the Act is ‘to comply with international standards for the prevention of domestic violence and to apply and enforce relevant principles of justice in accordance with such standards’.Footnote 358 For its part, Kiribati, in its ‘Bill for an Act to provide for the Protection of Victims of Domestic Violence, the Prevention and Elimination of the Crime of Violence within Domestic Relationships; and for related Purposes’, stated that one of the objects of the Bill is ‘to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women’.Footnote 359 These States are thus not acting on the basis of their conventional obligations but pursuant to obligations arising under general international law. Although the language of principles is perhaps suggestive of general principles of law, the level of detail at issue is more suggestive of customary international law.
States have similarly adopted policies relating to violence against women for a variety of reasons. For example, Antigua and Barbuda reported that it adopted its National Strategic Action Plan to End Gender-based Violence ‘to fulfil the mandates of CEDAW, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Para), the Beijing Declaration and Platform for Action and the Millennium Development Goals’.Footnote 360 Antigua and Barbuda thus acted pursuant to its conventional and extra-conventional obligations.
These examples show that States can and do act for reasons other than pursuant (solely) to their treaty obligations. Indeed, contrary to the Court’s position in the North Sea Continental Shelf cases, it is not entirely clear why there should be a presumption that States are acting ‘in the application of the Convention’.Footnote 361 States act for all sorts of reasons. They may act on the basis of their conventional obligation; equally, they may not, or they may act simultaneously on the basis of both treaty and customary obligations.
3.2.3.3. Practice of States non-parties to CEDAW
The practice of States which are not parties to the relevant treaty is of particular value in ascertaining the existence of a rule of customary international law.Footnote 362 At the time of writing, the States non-parties to CEDAW are Iran, Palau, Somalia, Sudan, Tonga and the US. Somalia and Sudan are also not party to the regional convention, the Maputo Protocol,Footnote 363 and the US is likewise not a party to the Convention of Belém do Pará.Footnote 364
The General Assembly resolutions discussed in Section 3.2.3.1 reflect the practice and opinio juris also of States which are or were not parties to CEDAW. Indeed, in 2000, at the time the first resolutions were adopted, there were 189 States Members of the UN and only 165 States Parties to CEDAW. Accordingly, the only basis for an obligation for the States that had agreedFootnote 365 to General Assembly Resolution S-23/3 (2000) but which were not parties to CEDAW was general international law. Contrary to what the Court indicated in the North Sea Continental Shelf cases, it would be curious to discount the practice of States which would go on to become parties to the CEDAW on the basis that they were acting ‘potentially in the application of the Convention’.Footnote 366 The relevant moment in time is the time of their acting, at which point there was no conventional obligation on their part.Footnote 367
Somalia, Sudan and the US were also members of the Commission on Human Rights and/or Human Rights Council at the time those bodies adopted resolutions referring to obligations for States regarding violence against women, similarly evidencing a non-conventional basis for those obligations.Footnote 368 As discussed in Section 3.2.3.1, the resolutions were adopted without a vote.
In addition to this joint practice of States Parties and non-parties to CEDAW, there is individual practice of non-parties suggestive of obligations under customary international law. Indeed, these States have reported on measures they have taken to eliminate violence against women as part of the Universal Periodic Review (UPR).Footnote 369 All of them have taken measures to prohibit violence against women and eliminate it. These measures include the adoption of legislation,Footnote 370 the formulation of domestic policiesFootnote 371 and the establishment of internal structures.Footnote 372 As William Schabas has observed, these measures are evidence that States recognise the existence of a prohibition on violence against women and that they are required to take steps to eliminate it.Footnote 373
That recognition is sometimes expressed explicitly. For example, as part of Somalia’s UPR, Finland recommended that Somalia ‘[a]dopt legislation prohibiting all forms of violence against women and girls in line with international law’.Footnote 374 Somalia accepted the recommendation,Footnote 375 thereby accepting that there was a prohibition on all forms of violence against women and girls under international law. Somalia has also accepted elsewhere that gender-based violence against women constitutes discrimination.Footnote 376
Along similar lines, during Iran’s UPR, Sierra Leone recommended to Iran that it ‘[e]xpedite the adoption of the pending draft bill on the provision of women’s security against violence and exercise due diligence in preventing and punishing gender-based violence in line with international norms’.Footnote 377 Iran partially supported the recommendationFootnote 378 and reported on it in its subsequent national report, referring, inter alia, to measures it had taken, including the provision of legal assistance, training courses, safe houses, clinics, hotlines, support and rehabilitation centres and health centres.Footnote 379 Iran, too, seems to accept that there is an international law norm which requires States to exercise due diligence in preventing and punishing gender-based violence.
Tonga, in its national report that feeds into the UPR process, observed that:
Despite the fact that Tonga has not ratified CEDAW … Tonga has established a lot of legal frameworks, policies and institution[s], which reflects the principles of CEDAW for example:
…
(d) Establishment of the Family Protection Legal Aid Centre (FPLAC / Center) in 2018. The Centre is now part of the Ministry of Justice and it has its own specific budget to assist victims of domestic violence.
(e) The Centre (FPLAC) in partnership with the United Nations Development Programme (UNDP) developed an online portal to enable domestic violence (DV) and gender-based violence (GBV) survivors access legal information and reporting mechanism.
(f) Family Protection Trust Fund under the Family Protection Act [Cap 6.02] (FPA) provides a government budget allocation for the prevention of domestic violence.Footnote 380
Tonga thus accepts that there are ‘principles’ underlying CEDAW relating to gender-based violence. As discussed in Section 3.2.3.1, these ‘principles’ are more likely rules of customary international law.Footnote 381 Elsewhere, Tonga has also recognised that, under CEDAW, gender-based violence constitutes discrimination against women and that, although Tonga has not signed or ratified CEDAW, it ‘may be used to interpret family laws in relation to the treatment of women’.Footnote 382 For its part, Sudan has described CEDAW as ‘part of applicable human rights standards’, despite not being a party to that Convention.Footnote 383
All this suggests that even the few States that are not party to CEDAW consider there to be obligations in respect of violence against women arising under general (customary) international law.
3.3. Customary rules on gender-based violence against women
On the basis of the above, there are two rulesFootnote 384 of customary international law relating to gender-based violence against women. These are: (i) gender-based violence against women is prohibited under international law; and (ii) States are under an obligation to exercise due diligence in eliminating gender-based violence against women.
To the extent that there is contrary practice, and there clearly is, this contrary practice would amount to violations of the rules.Footnote 385 States variously deny allegations that they have committed gender-based violence against women as unfounded, claim that the practice in question does not amount to violence, or contend that they are taking measures to address the violence. They do not argue that the practice amounts to recognition of a new rule. The violations also tend to be condemned by other States.
4. Conclusion
The legal status of the prohibition on gender-based violence against women is contested. It has been suggested that there is a normative gap and that, aside from the regional treaties, the prohibition only exists in soft law. Conversely, it has been said that States have accepted the soft law pronouncements and that the prohibition exists as a matter of customary international law. Many of these contentions are based on assertion or non-traditional means of identifying customary international law.
Following an orthodox approach to treaty interpretation and the identification of customary international law, this article has sought to establish the legal status of the prohibition. It first considered whether, as a matter of treaty interpretation, the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women. It then considered whether the treaty provisions, as interpreted by the CEDAW Committee and States Parties, have generated rules of customary international law.
The article found that the subsequent practice of States Parties has established the agreement of all the parties regarding the interpretation of Article 1 CEDAW, namely that discrimination against women includes gender-based violence against women. The CEDAW Committee’s General Recommendation 19 was found to have catalysed this State practice. The CEDAW Committee used the interpretation in General Recommendation 19, that the definition of discrimination against women includes gender-based violence against women, in its interactions with States Parties. States Parties, in turn, engaged with that interpretation in their interactions with the CEDAW Committee. Notably, there is practice in this regard from every single State Party to the Convention.
The consequence of this agreement between the parties is that pursuant to Article 2 CEDAW, States Parties agree to refrain from engaging in violence against women, adopt legislative measures prohibiting violence against women, and ‘take all appropriate measures to eliminate’ violence against women ‘by any person, organization or enterprise’.Footnote 386 To put it another way: (i) gender-based violence against women is prohibited under the Convention; and (ii) States are under an obligation to exercise due diligence in eliminating gender-based violence against women.Footnote 387
In terms of customary international law, following the approach set out by the Court in the North Sea Continental Shelf cases, certain provisions of CEDAW, as interpreted by the CEDAW Committee and States Parties, have generated rules of customary international law relating to gender-based violence against women. There is ‘a general practice “in the sense of the provision invoked”, which is accepted as law by parties and non-parties alike’.Footnote 388 Specifically: (i) there is a customary prohibition on gender-based violence against women; and (ii) States are under an obligation to exercise due diligence in eliminating gender-based violence against women.
Obligations in respect of gender-based violence against women thus arise out of conventional and customary international law and not solely soft law.
Acknowledgments
Thanks to Nicholas Sequieros-Engel for research assistance and Miles Jackson for comments on an earlier draft.
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