Academic journal article South Asian Studies

The Emergence/Extention of Due Diligence Standard to Assess the State Response towards Violence against Women/Domestic Violence

Academic journal article South Asian Studies

The Emergence/Extention of Due Diligence Standard to Assess the State Response towards Violence against Women/Domestic Violence

Article excerpt

ABSTRACT

This article begins by providing a brief summary of emergence of due diligence principle in the International human rights law. The article then explores the role of International/regional human rights mechanisms/instruments in clarifying and specifying the content of due diligence obligations and its application in the context of violence against women. It illuminates, in particular, the contribution of the reports prepared by the mandate holders of United Nations Special Rapporteurs on violence against women its causes and consequences. The article argues that the criterion has been useful in dealing with gender based violence within a human rights framework since it provides a yardstick to determine what constitutes effective fulfilment of the obligation (Manjoo, 2001). It concludes by taking note of Pakistan's level of compliance with due diligence obligation particularly in the area of 'prevention' of violence against women.

KEY WORDS: Due Diligence obligation, violence against women, human rights mechanism, CEDAW, Special Rapporteur on violence against women

Introduction

For many years the developments regarding state's due diligence obligation remained relevant only to the protection of individuals from injury caused by the agents of the state (Erturk, 2006: 2). Acts that were imputable to the individual perpetrator against other private actors would not engage state responsibility, even if it were obvious that the damage had occurred due to state's failure to avert such harm (Crawford & Ollsen, 2003: 445, 459). State responsibility would arise only for those acts or omission where involvement of public authorities could be proved. The gradual shiftin due diligence obligation from restrictive state-centric approach, mostly involving active state conduct, to a more expansive interpretation of the obligation including broader categories of non-state actors, such as private individuals, is a recent advance in human rights law (Erturk, 2006: 6). This development of due diligence standard, beyond the traditional requirement of state agency, offers a useful framework for dealing with violations of women's human rights, such as violence against women, at the hands of private individuals (Hasselbacher, 2010: ).

The due diligence standard for violence against women was articulated in the General Recommendation (GR) 19 of the Committee on Elimination of Discrimination against Women (the Committee hereinafter) for the first time in 1992. It called on States to act with due diligence to prevent and respond to violence against women. The due diligence criterion was then laid out in Article 4(c) of DEVAW 1993, reaffirming the provisions contained in the Committee's GR 19. The principle was also reiterated in paragraph 125(b) of Beijing Platform for Action. Coomaraswamy, the former Special Rapporteur on Violence Against Women (SRVAW) developed a list of considerations to measure State compliance with due diligence obligation in her 1999 Report. The traditional approach to VAW-due diligence analysis was to focus on the State's response to acts of violence that have already occurred, using tools such as legislation reform, access to justice, and the provision of care services. However, the due diligence standard was more clearly specified in 2006 report published by Ertürk, the former Special Rapporteur on Violence against Women. The entire report is devoted to this subject, which employed the due diligence standard as a mechanism for promoting greater state accountability with a view to eliminate violence against women. The report set up a framework of analysis, under four key principles namely, prevention, protection, punishment and reparations, against which the conduct of States can be evaluated. To effectively address the issue, the report urged the States to act in good faith, abstain from invoking custom/tradition as a pretext, and to record accurate statistics on violence against women. …

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