A/HRC/23/49
elements could serve as a useful assessment tool in the violence against women sphere,
whereby States can examine whether their responses are meeting the due diligence standard
of responsibility and, more importantly, whether they are also effective in practice.
B.
Existing normative standards
1.
International standards
23.
Many human rights instruments, whether legally binding or “soft law”, include an
interpretation and/or basic guiding elements in respect of the State responsibility to act with
due diligence. Among others, these include: recognizing the problem; reviewing current
policies to identify problem areas; modifying laws and policies to prevent harm or protect a
right; punishing and/or rehabilitating the perpetrator; providing the victim with
compensation and other remedial measures; reporting to an international body in respect of
measures taken towards compliance; and, occasionally, monitoring cases and indicators to
follow up and further modify policies. Reparation is a step in the process that is too often
neglected, as confirmed in reports of the present mandate. Nevertheless, in general, a due
diligence framework is clearly recognizable and coherent in both international and regional
human rights instruments, with differing provisions that may impact the realization of the
obligations of States parties.
24.
As regards the Convention on the Elimination of All Forms of Discrimination
against Women, article 2 refers to the obligation of States to pursue by all appropriate
means and without delay a policy of eliminating discrimination against women. However,
there is no specific provision pertaining to a State’s responsibility to act with due diligence
in eliminating violence against women. In an attempt to address the defect, the Committee
on the Elimination of Discrimination against Women issued interpretative guidelines in the
form of two general recommendations. General recommendation No. 12 (1989) highlights
the obligation of States to protect women from violence in the family, workplace, or any
other area of social life under articles 2, 5, 11, 12 and 16 of the Convention. In general
recommendation No. 19 (1992), the Committee stated that “gender-based violence may
breach specific provisions of the Convention, regardless of whether those provisions
expressly mention violence” (para. 6). The Committee reiterated “that discrimination under
the Convention is not restricted to action by or on behalf of Governments” and that “States
may also be responsible for private acts if they fail to act with due diligence to prevent
violations of rights or to investigate and punish acts of violence, and for providing
compensation” (para. 9). Interpreting within specific articles in the Convention a
cumulative prohibition on gender-based violence, the Committee recommended in its
general recommendation No. 12 that States include in their periodic reports information
concerning legislative and other measures in force to protect women from violence, the
existence of support services for women, and statistical data on the prevalence of all forms
of violence against women.
25.
The same Committee reaffirmed the due diligence standard in 2007 through its
consideration of two complaints which alleged a failure on the part of the State to
investigate and prosecute acts of violence against women, in violation of articles 1, 2, 3 and
5 of the Convention.16 In a dissenting opinion in an inadmissible communication, three
members of the Committee made reference to the due diligence standard in a complaint
against a State for its failure to grant an asylum petition, based on a claim of trafficking, in
16
8
Communications No. 5/2005, Hakan Goekce et al. v. Austria, views, 6 August 2007 and No. 6/2005,
Banu Akbak et al. v. Austria, views, 6 August 2007.
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