Cross-border domestic violence: the global pandemic and the call for uniform enforcement of civil protection orders.

Author:Feldman, Angelica
 
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  1. INTRODUCTION

    Domestic violence is a "global pandemic" that can be found in every country and sometimes between countries with the increased fluidity of migrants. (1) Domestic violence is the most prevalent "form of violence perpetrated against women" and poses major health risks for women internationally. (2) With international migration comes complex family law issues such as cross-border domestic violence, yet there are no "bilateral or multilateral treaties regarding the issuance, recognition, or enforcement of foreign civil protection orders." (3) Recent attention to the issue of "establishing appropriate civil protection order regimes" to protect victims of domestic violence has led the Hague Conference on Private International Law (HCCH) to add it to their agenda. (4) Currently there are a number of proposed and existing models of cross-border recognition and enforcement of civil protection orders, but no universal treaties. (5)

    This Note will assess the differences between the current and proposed national and regional models for cross-border recognition and enforcement of civil protection orders, along with the possible issues that arise in the formation of a universal treaty, and form a suggestion on the best possible treaty to approach the issue of cross-border domestic violence. (6) Part II will discuss the history of domestic violence, the international response to domestic violence, and the HCCH's initial studies on cross-border domestic violence cases. (7) Part III will detail proposed and existing national and regional models of cross-border recognition and enforcement of civil protection orders. (8) Part IV will analyze issues that may arise in the drafting of a uniform cross-border domestic violence treaty, and compare the differences between the proposed and existing national and regional models. (9) Part V will conclude that specific compromises between existing legislation and proposed legislation will create the best cross-border domestic violence treaty. (10)

  2. HISTORY

    1. A General Explanation of Domestic Violence

      Intimate partner violence, better known as domestic violence, "emerged as a recognizable issue in our society in the mid-1970s." (11) "The term 'domestic violence' was adopted by women's advocates to emphasize the risk to women within their own family and household, and over time the term became synonymous with battering." (12) In the early 2000s social scientists identified the existence of different types of intimate partner violence. (13) The term domestic violence, however, typically refers to Coercive Control Violence (CCV), which incorporates the cycle of violence and control. (14) For the purpose of this Note, the term domestic violence will refer specifically to CCV because CCV is the most well-known and dangerous form of domestic violence. (15)

    2. INTERNATIONAL RESPONSE TO DOMESTIC VIOLENCE

      The recognition of gender-based violence as a human rights violation is a fairly recent global development. (16) Violence against women was considered a private matter and States believed they had no authority over the individuals who perpetrated acts of intimate partner violence. (17) As the notion of state sovereignty started to wane, a movement developed that began to hold states accountable for the way they were failing to protect their citizens. (18) Within the new scope of accountability for human rights "[d]omestic violence was one of the earliest forms of gender-based violence to generate international action." (19)

      In the early 1970s domestic violence started to gain global recognition. (20) The year 1975 was deemed the International Women's Year by the United Nations General Assembly (U.N. Gen. Assembly) in 1972 and was expanded to be the United Nations Decade for Women from 1975 to 1985. (21) During this initial decade, the focus shifted from "the need ... to ensure dignity, equality and security" of family members to "the eradication of violence against women in both the public and private spheres." (22) The Convention on the Elimination of All Forms of Discrimination against Women (the Convention) was adopted in 1979 and came into power on September 3, 1981. (23) The Convention drafted in the 1970's, however, "does not mention violence either as a form of discrimination, or as an obstacle to the equal enjoyment of rights by women." (24) Nevertheless, the Committee on the Elimination of Discrimination against Women (CEDAW) members asked States about violence against women and by the sixth session in 1987 domestic violence was one of the issues raised. (25)

      1. International Response to Domestic Violence 1985-1995

        The first resolution pertaining to domestic violence was adopted by the General Assembly in 1985 as a recommendation of the Commission on the Status of Women (CSW). (26) The 1985 Resolution emphasized the effects of domestic violence on family members and invited members to adopt specific measures to make the criminal and civil justice systems more sensitive to the matter of domestic violence. (27) Additionally, the 1985 Resolution emphasized the need to provide opportunities for the rehabilitation of the family unit to address underlying issues before they escalate. (28) "The implementation of the 1985 Resolution included the 1986 Expert Group Meeting on Violence in the Family." (29) This Group emphasized the effects of violence on women. (30) In 1989, the eighth session of the CEDAW made it clear that violence against women was an underreported phenomenon. (31)

        In 1990, General Resolution 45/114 on domestic violence was adopted by the U.N. General Assembly. (32) General Resolution 45/114 noted "[t]he serious lack of information and research on domestic violence globally and the need for exchange of information on ways of dealing with this problem." (33) The CSW in 1991 recommended the development of international legislation on violence against women. (34) The U.N. General Assembly adopted the Declaration on the Elimination of Violence against Women (DEVAW) on December 20, 1993. (35) The Declaration did not focus on domestic violence but identifies gender-specific violence as a human rights violation. (36)

        Violence against women was incorporated into the CEDAW's jurisprudence in 1992 with the adoption of General Recommendation 19, which "expressly confirmed that domestic violence impedes gender equality." (37) General Recommendation 19 specifically points out that "[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence ...," (38) General Recommendation 19 laid a framework which broadened the definition of violence against women to include "acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty," whether occurring in public or private life. (39) Additionally, it incorporated a "due diligence" standard to determine what states should do to fulfill the objectives set forth by General Recommendation 19. (40)

        Subsequently, the World Conference on Human Rights in Vienna in 1993 made one of the "strongest global calls for the recognition of violence against women as an international human rights violation." (41) The 1993 World Conference in Vienna led to the appointment of the Commission on Human Rights' mandate of the Special Rapporteur on Violence Against Women. (42) Additionally, in 1994 the Inter-American Convention on the Prevention Punishment and Eradication of Violence against Women (Convention of Belem Do Para) was adopted by the General Assembly of the Organization of American States (OAS), which structurally parallels the DEVAW (43) The definition of violence against women was again expanded "to include violence perpetrated against women in war" at the Fourth World Conference on Women in Beijing in 1995. (44) At the World Conference in Beijing, violence against women was identified along with eleven other areas requiring urgent action. (45)

      2. International Response to Domestic Violence 1995-2016

        Between 1995 and 2000 the focus shifted from non-state, private violence against women "to crimes of conflict and mass rape as a weapon of war." (46) In 2000, the Optional Protocol to accompany CEDAW was drafted, which would include a mechanism for handling individual complaints. (47) To date, however, relatively few individual women have brought complaints under the Optional Protocol, "because many women [who are victims,] are not in a position to bring a complaint due to illiteracy, fear of retribution from family and friends, poverty, or economic dependency." (48)

        In the 2003 case, A. T. v. Hungary, the CEDAW expressed concerns over "the State's overall failure to protect" victims of domestic violence. (49) At that time, Hungary lacked legislation and effective remedies to combat domestic violence. (50) The CEDAW "took a stronger stance with respect" to the two subsequent cases against Austria (Gocke v. Austria & Yildrin v. Austria) where both victims were murdered by their husbands. (51) The CEDAW found that Austria had a comprehensive model to address domestic violence, however, its State actors failed to adhere to the State's due diligence obligation. (52)

        In 2006, the focus was again broadened to classify "violence against women--whether in the home or elsewhere--as a human rights violation," when the Secretary-General Kofi Annan issued a report on ending violence against women. (53) The report confirmed that (i) states are obliged to hold perpetrators accountable; (ii) "violence against women is not inevitable;" (iii) that it continues because of discrimination against women; and (iv) "the continued prevalence of violence against women indicates that 'States have yet to tackle it with the necessary political commitment, visibility and resources.'" (54)

        U.N. Secretary-General Ban Ki-moon in 2008 unveiled the multi-year international...

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