International Law and Violence Against Women

Europe and the Istanbul Convention

Johanna Niemi, Lourdes Peroni, Vladislava Stoyanova, Johanna Niemi, Lourdes Peroni, Vladislava Stoyanova

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000032536
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book offers an in-depth and critical analysis of the Istanbul Convention, along with discussions on its impact and implications.

The work highlights the place of the Convention in the landscape of international law and policies on violence against women and equality. The authors argue that the Convention with its emphasis on integrated and comprehensive policies has an important role in promoting equality, but they also note the debates on "genderism" that the Convention has triggered in some member states. The book analyses central concepts of the Convention, including violence, gender and due diligence. It takes up major commitments of the parties to the Convention, including support and services to victims, criminal law provisions and protection of migrant women against violence. The book thus makes a major contribution to the development of national laws, policies and practice.

It provides a valuable guide for policy-makers, students and academics in international human rights law, criminal and social law, social policy, social work and gender studies.

Part I

Context and role

1 The Istanbul Convention in the context of feminist claims

Lorena Sosa

1 Introduction

The normative impact of social movements is particularly visible in the field of violence against women (VAW), including in the human rights instruments addressing this violence. Norms address violence according to the perceptions, considerations and reactions that seem prevalent in certain sectors of society at a given time.¹ Moreover, human rights treaties must take account of developing social conditions and perception of rights.² The adaptation of human rights norms to social claims regarding VAW can contribute to these norms’ effectiveness and permanency.

Women’s activism has a prominent part in the process of elaboration, implementation and monitoring of norms. It has contributed to defining the scope and meaning of VAW and to triggering and promoting the development of international norms, standards and monitoring mechanisms.³ It contributes to monitoring the implementation of and compliance with norms by pointing out the gaps and flaws in policies.⁴ That said, compliance with norms is most often assessed in relation to the presence of institutional factors, such as abolishing conflicting laws and passing legislation, allocating budget, creating dedicated agencies and including women in decision-making positions. Strategies for the implementation of norms may nevertheless fail to contribute to social transformation “if they lose their relation to women’s movements and claims”.⁵

The connection between social movements and the effectiveness of norms prompts the question to what extent contemporary feminist claims are addressed by the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) and considered by its monitoring mechanism. By “feminist claims” I refer to challenges to systematic gender discrimination and the pursuit of gender equality, expressed through collective actions. These actions can range from spontaneous to organised forms of participation, including general subversiveness in the arts or academia.

Women have mobilised, raised their claims and organised their actions, before and after the adoption of the Convention. In spite of important achievements, recent times have witnessed a “redoing” of feminism and its “resurgence”, with the participation of younger generations,⁶ confirmed by the many organised campaigns against them.⁷ The “revival” of feminism is in part due to the use of social media and the Internet for networking, coordinating actions and disseminating strategies.⁸ A “spontaneous feminism” is emerging, incorporating women who “simply position themselves as the subject of rights and with rights equal to men”.⁹ This feminism is characterised by having “incidental” representatives, who emerge from women’s participation in such different acts of resistance.¹⁰ These “new” forms of feminist participation result in a diverse array of collective actions often originating from submerged, latent, and temporary networks, rather than centralised organisational forms.¹¹

That said, there is great diversity within and among “feminisms” and only the most visible public protests, often by elite groups of women, are noticed, thus missing the activism of marginalised groups.¹² Nonetheless, there is a continuity between generations according to which “new” or emerging feminist elaborations are based on previously elaborated notions. In addition, despite the contemporary transnational character of feminist movements,¹³ their content, structure and demands are heavily inflected by their specific contexts.

Without attempting an exhaustive historical discussion, this chapter explores the main feminist claims in the European context during the drafting process and after the adoption of the Istanbul Convention, followed by a review of their incorporation into the final text. The chapter concludes with some reflections about the lessons learned.

2 Feminisms in Europe and the adoption of the Istanbul Convention

Feminisms in Europe seem characterised by three aspects. First, their heterogeneity. Europe has a long tradition of women’s activism, addressing issues such as women’s political participation, sexual violence, the gendered division of labour, pay equity and sex discrimination. However, the varied histories of feminism in different European countries confirm the diversity of goals among the movements. Feminisms in Europe have ranged from liberalism to materialism, including varying types of “difference” feminisms, some of them becoming more prevalent in some countries. The idea of a traditional flow of first-, second- and third-wave feminism that applies to Europe is also challenged by the historical development of each State.¹⁴ For instance, while British women gained the right to vote in 1918, marking the end of the first wave, Swiss women did so only in 1971. Particularly, post-fascist and post-communist countries’ expressions of feminism do not fit the wave framework.¹⁵

Second, the early reception of several feminist claims by the Council of Europe (CoE) is another characteristic. For instance, it recognised the political rights and legal position of women in the seventies,¹⁶ and since the eighties, equality between women and men has been a leading principle of the organisation.¹⁷ Moreover, in many European countries, feminist movements have undergone a process of “institutionalisation”, partly as the consequence of the Council of Europe’s broad agenda for promoting women’s participation in all fields of decision-making.¹⁸ For instance, in 2003, the Council of Europe adopted Recommendation Rec(2003)3 on balanced participation of women and men in political and public decision-making. Although the numbers of women elected and holding strategic positions within the Council has increased, “parity is still a distant goal for all aspects of political and public decision-making”.¹⁹

Third, activism is channelled in women’s organisations and NGOs, encouraged by the CoE’s strategy for civil society participation. NGOs have become the pillar of civil society in dialogues with the Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities. The European Union has also greatly encouraged the participation of civil society through NGO funding. Such NGO-isation of activism, however, has been criticised by some authors as leading to a “depoliticisation” and “delocalisation” of feminist claims.²⁰ That said, given the strategy to involve NGOs in the discussions of regulation, it is reasonable to expect NGOs participation as observers in the negotiations of the Istanbul Convention, and to convey some of the main feminist claims.

Considering the long history of women’s movements in Europe, the adoption of a legally binding convention on violence against women a decade into the new millennium, may appear as a tardy one. However, several initiatives dating back to the eighties and nineties preceded the adoption of the Istanbul Convention, such as Recommendation No R (85) 4 on violence in the family adopted in 1985 by the Committee of Ministers,²¹ and Recommendation No R (90) 2 on social measures concerning violence in the family in 1990.²² In 1993, the third European Ministerial Conference on Equality between Women and Men focused on “Strategies for the elimination of violence against women in society: the media and other means”, which resulted in the development of an Action Plan to Combat Violence against Women. Finally, recommendation (2002) 5 on the protection of women against violence was adopted.²³ National implementation of this recommendation has been monitored, showing many gaps in the provision of services for victims.²⁴ In December 2008, the Council of Europe set up the Ad Hoc Committee for Preventing and Combating Violence against Women and Domestic Violence (CAHVIO), which held nine meetings during the drafting process of the Istanbul Convention.

Following the European approach to civil society participation, several NGOs participated as observers during the meetings of CAHVIO. After the adoption of the Convention, NGOs continue to actively participate in the monitoring process by submitting shadow reports to the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), the independent expert body responsible for monitoring the implementation of the Convention. Such interaction can contribute to keep the Convention receptive to social developments.

3 Contemporary feminist claims and their reception in the Convention

This section explores the theoretical construction of the subject of protection, the conceptualisations of violence and the economic aspects of feminist claims, and their incorporation in the text of the Istanbul Convention.

3.1 The feminist subject and the subject of protection in the Convention

At the time of adoption of the Istanbul Convention, feminist theories had dwelt for decades upon who was the subject of their claims. Naffine argued that law’s construction of its subjects follows a set of characteristics – rational, i...