Why is domestic violence a human
By Abhinaya Ramesh* (Summarized by Janice Duddy)
(...) Domestic violence in the context of human rights discourse
The concept of human rights evolved largely from ideas of western political theory about rights of individuals to autonomy and freedom. Thus the international human rights law evolved to protect individuals' autonomy vis-a-vis the state. And, it held states responsible for individual rights and accountable for abuse of those rights.
The development of human rights has been expressed in terms of 'generations': The civil and political rights, as the first generation rights; economic, social and cultural rights as the second generation rights; and the group or people's rights, which are recently defined as the third generation rights.
Further, as this development expresses a chronology of rights, it is also held, of course controversially, as implying a hierarchy of rights. From women's perspective, however, this development exhibits a commonality: that in its current form, the rights movement is based on male experiences-experiences of men's struggle in men's world against the overarching state to assert men's dignity and humanity(9). Hence this HR movement is unresponsive to women's lives and risks they face.
Indeed the development of human rights movement, right from the Universal Declaration of Human Rights, and the three generations of rights shows that rights are defined as 'belonging to all human beings' irrespective of gender. However, though international law is gender neutral in theory, in practice it constituted men and women into separate spheres of existence--public and private, respectively. Thus men exist as public, legal entities that enjoy civil and political rights and in a way define the nature of rights discourse. Women's existence, on the other hand, is "privatized", thus, seen as existing outside the purview of the state's obligation. Often women's exclusion from the human rights practice and discourse, their relegation to the private, has been justified on grounds of social and cultural specificity of region or a group. Thus, social and cultural norms, which become grounds for respective states' consistent relegation of women to private sphere, results in international law being either reinforcing or replicating exclusion of women's human rights abuses from the public sphere(10). The effects of this public/private divide in the international law are more evident in domestic violence, which literally happens in the private. Many laws are gender neutral, however, their application is gender biased.
Moreover the economic and social context of its (laws) application has not been considered seriously by both the governmental and at the same time non-governmental organizations, all over the world.
Harms suffered by women at the hands of private individuals or within the family have been placed outside of the conceptual framework of international human rights. Feminists have argued that a failing of international human rights norms is in not recognizing the 'gendered' consequences of their application they render invisible particular problems suffered by women
Recently, the concept of state's responsibility has expanded to include not only the abuse directly committed by itself or by its agents, but also state's systematic failure to prosecute the actions committed by its agents or the private individuals. This implies that though the state or its agents may not be responsible for the acts of violence, its failure to prosecute the abuse was held as amounting to complicity in it(11).
Moreover, in addition to holding states responsible for taking action against the human rights abuses occurring in the private sphere, feminist human rights thinkers argued that domestic violence should be conceived as a form of torture. Catherine MacKinnon, a feminist human rights thinker, asks that though torture(12) with cases of disappearance and murder, is widely recognized as a core violation of human rights, that inequality on the basis of sex is widely condemned, why is torture on basis of sex in the form of rape, domestic battering and pornography not seen as a violation of human rights?(13)
In this regard Rhonda Copelon's attempt of analyzing characteristics of domestic violence, in the light of international legal understanding, of what constitutes torture and cruelty, the inhuman and degrading treatment it entails, is important. She shows that process, purposes, and consequences of torture and that of domestic violence are startlingly similar. That whether torture committed in domestic context or that inflicted officially, does not reduce its intensity of violence, nor does it demand different standards of judgments and actions on part of state(14).
Hilary Charlesworth, who argues for women's human rights law, suggests that the existing international human rights instruments, has both a separate provision for women's rights (i.e. Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW), and other general mechanisms which stressed formal equality of women and men. While this development is important, it is not, she points out, adequate to address issue of women's subordination(15) . Recently, non-governmental organizations have begun to document women's abuse within the context of traditional human rights law.
However, Hillary Charlesworth shows that these efforts are based on and addressed within that framework of whose 'very structure is built on the silence of women'. She suggests further that the fundamental problem women face is not discriminatory treatment vis-à-vis men. Rather it is necessary to raise a larger problem: that women are in inferior position because they have no power either in public or private worlds, or in international human rights law. Thus problem of domestic abuse as a human rights issue will have to be seen as a part of larger reality of subordination of women--their powerlessness in terms of defining the human rights discourse.
* Author is British Chevening Human Rights Scholar. For comments on this paper contact at: abhinayar(AT)hotmail.com
From : Resource Net Friday File, Issue 110