International Institutions

What is international human rights law?

International human rights law requires states to take active and positive steps to respect and protect the basic human well-being of all individuals within their jurisdiction.

In 1945, just after the end of the Second World War, the UN Charter established the principle that human rights should be enjoyed by women and men equally, and that states should work together for peace. The UN Charter also established the various UN bodies – the General Assembly (all members of the United Nations are members), the Security Council, and the International Court of Justice. The basic principles of human rights established in the UN Charter were given more detail in the Universal Declaration of Human Rights of 1948, a landmark document drafted by representatives of states with a variety of political, legal, religious and philosophical backgrounds, with the aim of strengthening the ability of all human beings to live in peace and without want. Together these representatives recognized the necessity of civil and political rights, and economic, social and cultural rights, as rights that all individuals are entitled to, and which cannot be taken away.

At the international level, states’ obligations are established in human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women. These are legal agreements whose content were negotiated and agreed by states’ representatives. Once the content of a treaty has been agreed on, states sign or ratify to show their intention to respect those rights, protect those rights from being violated by others, and to ensure fulfilment of those rights by establishing a state apparatus capable of ensuring these rights. Once a state has ratified a convention, a process of monitoring begins, where a committee of experts - for example, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child - review how well the state is implementing the content of a treaty. With some treaties, individuals whose rights have been violated are able to bring a case to the relevant treaty body. Thus over time, the treaty bodies develop important expertise on thematic issues which the treaty body summarizes in a General Comment or General Recommendation, which gives an important level of detail to the principles established in the human rights treaties.

Aside from treaty-based obligations, some human rights are so profoundly necessary to human well-being that they are obligations on all states, even if they have not been formally accepted through treaties – these are known as the rules of customary international law. There is a further foundational level called “erga omnes” duties – duties owed “towards all” for example, the prohibition of torture. The right not to be subjected to torture is part of the constellation of human rights violated by the practice of gender-based violence against women and girls and so is extremely important to this Tackling Violence against Women website.

Alongside these basic frameworks of customary international law and international treaty law, the global political bodies of the United Nations, including the General Assembly and the Human Rights Council debate resolutions relating to human rights and mandate special rapporteurs (such as the UN Special Rapporteur on violence against women, its causes and consequences) to undertake research on specific human rights issues. Often these political bodies adopt declarations, guidelines and principles which provide more detail on the substance of human rights, how specific human rights are to be implemented, and to take stock on new practices and developments in the world which are a threat to the enjoyment of human rights. These political bodies also work with international civil society to prepare progressive developments in their resolutions, to increase understanding and effective implementation of human rights law or on issues which were previously not recognised as involving genuine human rights impacts for individuals. For example, the UN political bodies recognized over time how women and girls’ experience of discrimination and torture was manifested in various kinds of gender-based violence, not least in relation to violence inflicted in families and communities, which states allowed to persist.

International human rights law has a close relationship with and shares basic concepts with international humanitarian law (especially protection of civilians during conflict) international criminal law (to prosecute individuals who have committed war crimes, or crimes against humanity) and international refugee law. For example, gender-based violence against women, including rape and sexual assault, can be a violation of human rights law, a war crime, or a crime against humanity; and where women and girls have left their countries because of torture, they are entitled under international refugee law to seek asylum in safe countries.

Also common to all the branches of international law is the duty to ensure equality and non-discrimination – many positive developments in the international law relating to violence against women arose from an recognition that crimes of torture and ill-treatment were inflicted on women in different ways than how they affected men. [MOU1]

New international legal frameworks on sustainable development and climate change are complementary to international human rights law, recognizing that now, human flourishing can only occur in a healthy biosphere.

What is regional human rights law? How does it fit with international human rights law?

Regional human rights law is based on negotiation of treaties and political resolutions in regional political bodies – such as the African Union, the Organization of American States and the Council of Europe. Regional political bodies have also appointed special rapporteurs on gender-based violence against women.

The content of international and regional human rights law relating to gender-based violence against women – the detail of which is set out in this website – is very consistent across the global United Nations system, and the regional treaty bodies, courts, and experts. So much so, that the various international and regional treaty bodies and independent experts specializing in gender-based violence have come together in a shared committee called the EDVAW Platform, to share strategies and resources.

The Platform of Independent Expert Mechanisms on Discrimination and Violence against Women (EDVAW Platform) gathers seven United Nations and regional independent expert mechanisms dedicated to addressing discrimination and violence against women and girls, promoting accountability, and advancing women’s and girls’ rights at the international and regional levels.
The Platform aims to strengthen institutional links and thematic co-operation between the mechanisms with a view to developing harmonised strategies and undertaking joint action. By enhancing collaboration, its goal is to improve the implementation of the existing international and regional legal and policy frameworks developed to end discrimination and violence against women and to make these mechanisms more visible and accessible to all.

At both the international and regional level, the basic rule of international law is that states give their free consent to treaties [Part 1, Vienna Convention on the Law of Treaties] and agree to put their obligations into practice [the duty of “pacta sunt servanda” Article 26 of the Vienna Convention on the Law of Treaties]. The effective implementation of human rights law is dependent on strong rule of law both within and between states. Various monitoring processes, whether treaty-based or mandated by UN and regional political bodies – individual cases, periodic review of state practice, or expert enquiries – hold up a mirror to states’ practices, to ascertain whether the states are abiding by their obligations. Where there is a failure to abide by their obligations, states are required to remedy the issues, as a duty to the rights-holders, and as part of the duty to uphold agreements.

At the time of writing, there has been sustained rejection of international law and its processes by a very few powerful states.. However, failure to abide by a law shows a breach of that law, not a proof that the law is eradicated or proven ineffective. This is especially the case in international law, where the evidence of state practice often shows acceptance and agreement with what have been negotiated by states and agreed by states to be the rules, rules that work to the benefit of all states.[MOU2]

How is international and regional human rights law relevant to the eradication of violence against women and girls?

The modern international human rights system began with the UNCharter in 1945, which established the United Nations framework. The human rights of women and girls to live according to principles of effective equality with men and boys was recognized as foundational in the UN Charter and the Universal Declaration of Human Rights.

Swiftly, the earliest human rights treaties (European Convention on Human Rights, Inter-American Convention, African treaty [check dates and full titles] [also check Arab regional treaties] were regional in scope and reflected human rights concerns as they were manifested and understood in those regions. The commitment to gender equality included in the UN Charter was also reflected in the principles in the regional treaties [although – with some clawback, especially in the Arab region principles]

Specific treaties on women’s rights – both international and regional – were drafted and adopted, again reflecting a regional experience [Africa, right to peace; Americas violence against women; Europe - ] In this way, the over-arching commitment to gender equality was reflected in the detail of the regional treaties.

The main developments in international human rights law on gender-based violence against women began with the UN General Assembly Declaration on the Elimination of Violence against Women and CEDAW Committee’s General Recommendation 19. Both recognized gender-based violence as a form of discrimination against women and girls, where the state had specific obligations to prevent, investigate, prosecute and punish crimes of gender-based violence against women and girls, whether those crimes were committed by State agents or non-State actors. The principle in both the Declaration on the Elimination of Violence against Women and the CEDAW Committee’s General Recommendation 19 being that states owe legal duties to ensure safety and justice for women and girls, and that gender-based violence is a violation of their human rights.

From the early 1990s onwards, the detail of those duties was clarified and recognized in more practical terms, for example:

· how crimes of gender-based violence against women should be defined;

· procedural protections from women and girls while participating in investigations and prosecution, whether in national courts or international courts such as the International Criminal Tribunal for former Yugoslavia, International Criminal Tribunal for Rwanda and the International Criminal Court;

· standards around good practices for evidence-gathering and protection orders,

· access to services such as domestic violence shelters for women and girls;

· transformative approaches to preventing gender-based violence, through public information campaigns around eradicating stereotypes that permit gender-based violence against women and girls to persist.

The principles of international human rights law relating to gender based violence against women and girls may be relatively recent, but the detail of what it requires is compelling, particularly in recent General Recommendations from the Committee on the Elimination of Discrimination against Women on access to justice (General Recommendation 33) and an updated General Recommendation on violence against women (General Recommendation 35, updating General Recommendation 19.)

In 1993, the Vienna Declaration and Programme of Action clarified that all human rights are “universal, indivisible, interdependent and inter-related” – that the experiences of rights-holders must be reviewed in the round; and how the tapestry of legal commitments can and must be seen together. The right to life, the right not to be subjected to torture or ill-treatment, the right to equality before the law, the right to physical and mental integrity, the right to health and to equality within the family, all belong in the constellation of rights which are violated through gender-based violence against of women and girls. While the Convention on the Elimination of All Forms of Discrimination against Women is the leading treaty on women’s rights, all the other treaties contain non-discrimination clauses and over time, have been interpreted to account for the specific needs that women and girls have if their rights are to be guaranteed. In the context of gender-based violence against women and girls, the universality, indivisibility, interdependence and inter-relatedness of human rights can be illustrated with this example: that a survivor of rape should have respectful assistance during investigation and evidence gathering from police and prosecutors, to ensure her right to access to justice and equality before the law; that if pregnancy results from the rape, she should be entitled to access to her right to health, in the form of access to safe and legal abortion, and this right is universal – wherever women and girls experience these harms, they have entitlements under international human rights law to access to the same kinds of assistance, even if (for example) access to abortion is controversial in the state where they are living.

The level of detail about the content of rights is the fruit of more than years of periodic review of the implementation of treaties as they relate to women’s rights. The process of periodic review requires states to make a report of how they are implementing women’s human rights; the evidence and concerns raised by domestic civil society in “shadow reports” about the shortcomings of state practice; and a process of “constructive dialogue” between the state and the treaty body about what is good progress and which issues still require attention and remedy. These discussions are both principled, in keeping close to the thematic understanding of each human right, and very practical, particularly because the civil society shadow reports include detail of their clients’ experiences, particularly their assessment of how violations of their rights take place and what needs to happen in order to create a solution

The level of detail of women’s and girls’ entitlements under international human rights law is also the fruit of thousands of cases brought to the international treaty bodies and regional human rights courts. These review the experience of an individual in the round in how they were subjected to harm, and how they should have experienced effective and respectful investigation, prosecution and provision of reparation.

Key International Institutions

The United Nations

United Nations Special Rapporteur on violence against women, its causes and consequences

Committee on the Elimination of All Forms of Discrimination against Women

Human Rights Council

EDVAW Platform

The Working Group on discrimination against women and girl