United against gender violence: Europeans struggle to provide protection for migrants.

AuthorTsankov, Mimi E.
PositionIntroduction through V. European Union Member State Protection Survey I. Belgium, p. 163-211

Table of Contents I. INTRODUCTION II. INTERNATIONAL AND REGIONAL SOURCES OF LAW A. The European Convention of Human Rights B. The United Nations Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") C. Violence Against Women in the Human Rights Context D. CEDA W, Domestic Violence, and Migrants E. The U.N. Model Framework F. Council of Europe and the Istanbul Convention III. CONCEPTUAL METHODOLOGY AND ANALYTICAL DIMENSIONS A. Gender Equality/Inequality Dimension B. Human Development Dimension C. Treaty Obligations Dimension 1. Recency of EU Membership 2. Human Rights Treaty Obligations 3. Recency of Treaty Ascension 4. U.N. CEDAW Reporting Compliance D. Domestic Legal Infrastructure IV. COMPLIANCE, IMPLEMENTATION, AND ACCOUNTABILITY A. European Convention of Human Rights Compliance and Accountability B. CEDA W Compliance and Accountability C. Council of Europe Compliance and Accountability D. Implementation and Compliance Concerns E. Asylum Claims Generally V. EUROPEAN UNION MEMBER STATE PROTECTION SURVEY A. The Netherlands B. Sweden C. Denmark D. Finland E. Germany F. Slovenia G. France H. Italy I. Belgium J. Austria K. Spain L. Portugal M. Ireland N. Czech Republic O. Cyprus P. Poland Q. Luxembourg R. Lithuania S. Greece T. Estonia U. Slovakia V. Croatia W. United Kingdom of Great Britain and Northern Ireland X. Latvia Y. Bulgaria Z. Malta AA. Hungary BB. Romania VI. CONCLUSIONS I. INTRODUCTION

Domestic violence is a worldwide phenomenon, and since the mid-1990's, there has been a coordinated international effort to reduce its pervasiveness. (1) In Europe, statistics suggest that up to one quarter of women will experience domestic violence and up to 10 percent of women will suffer an incident in any given year. (2) Within the domestic violence victim population, there is a subgroup of victims that is uniquely vulnerable. (3) It is comprised of victims that lack legal immigration status. With language and cultural barriers, as well as a lack of knowledge about domestic legal systems, some of these victims may fear that in seeking law enforcement protection they could be removed from their host country. (4)

European Union Member ("EU-M") States are bound by a host of regional and international human rights obligations to strengthen laws and construct networks of resources to combat this problem. (5) This article provides background information on the sources of regional and international law mandating these protections. (6) It defines the legal obligations inherent in European Union Membership, (7) the European Convention on Human Rights ("ECHR"), (8) the United Nations Convention on the Elimination of Discrimination against Women ("CEDAW"), (9) and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence ("Istanbul Convention"), (10) focusing primarily on the CEDAW's specific obligations related to migrant domestic violence victims.

The general consensus has been that although many EU-M States have devised complex internal legal frameworks to support migrant domestic violence victims, success has been elusive in some instances. (11) Thus, this article provides country-specific data to better understand the environments in which these deficits are believed to occur. (12) To be sure, providing adequate legal relief to migrant domestic violence victims is a challenging proposition. (13) Contextual factors can serve to either diminish or heighten the extent to which individual EU-M States are able to meet this human rights obligation. (14) The purpose of this article is to present a snapshot of the European Union's journey towards compliance that may enable human rights observers to gauge where individual EU-M States find themselves on this particular metric in comparison to other states given a variety of contextual factors. The article concludes that while each of the EU-M States has made significant strides in supporting domestic violence victims generally, some deficiencies and concerns remain as relates to migrant victims. (15)

  1. INTERNATIONAL AND REGIONAL SOURCES OF LAW

    1. The European Convention of Human Rights

      The foundational legal instrument that provides protection for migrant domestic violence victims in EU-M States is the ECHR. (16) Through the development of that treaty and the articulation of its inherent obligations, the European Union, as a regional body, has voiced support for establishing a variety of explicit and implied protections for migrant domestic violence victims. (17) For example, parties to the ECHR are explicitly bound to uphold Article 3, which guarantees freedom from torture and inhuman treatment. (18) However, parties have the less explicit and more general obligation to perform functions in a manner that is deemed compatible with the states' obligations under the provisions of the ECHR. (19) Thus, many humanitarian and human rights-related requests of EU-M States necessarily implicate standards articulated in the ECHR articles.

    2. The United Nations Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW")

      A key U.N. human rights objective is the global elimination of discrimination against women. (20) Over the years, this worldwide body has given meaning to this specific objective through the creation of the CEDAW, a legal instrument that codifies obligations ranging from development of greater equality in state laws as they impact men and women, to targeting "culture and tradition as influential forces shaping gender roles and family relations." (21) Pursuant to Articles 3 and 5, the CEDAW enshrines the right of women to enjoy their human rights free of discrimination, and enables the attainment of that right through the modification of social and cultural patterns. (22)

      Article 2 of the CEDAW explicitly condemns discrimination against women in all its forms, and parties to the treaty are required to undertake measures to end all forms of discrimination against women. (23) The CEDAW mandates that the pace of policy change be pursued diligently, "by all appropriate means and without delay." (24) This treaty envisions the development and/or modification of state constitutions and laws that further this goal and mandates the establishment of legal protections when necessary to ensure the rights of women. (25) The CEDAW requires that state parties submit reports on the legislative, judicial, administrative, and other measures that they have adopted with respect to their obligations under the treaty. (26) Article 22 permits "specialized agencies" ("CEDAW Specialized Agencies") to submit reports ("Shadow Reports") discussing states' implementation efforts. (27) In order to assess progress made in meeting the CEDAW objectives, Article 17 envisioned the establishment of a treaty body in the form of a committee ("CEDAW Committee"), which would articulate interpretative guidance and recommendations, monitor state progress, and release substantive reports. (28) CEDAW Specialized Agencies submit Shadow Reports to the CEDAW Committee to supplemental state provided information about compliance with CEDAW obligations. (29) These are independent reports that examine particular aspects of the state human rights reporting. (30)

      Under the CEDAW, states are responsible for their own acts, as well as for private acts if the state fails to act with due diligence to prevent violations of rights. (31) The CEDAW has further clarified that it is the state's responsibility to "respect, protect and fulfil women's right to non-discrimination and to the enjoyment of equality." (32) Furthermore, states are responsible for investigating and punishing acts of violence and for providing compensation for violations of the CEDAW. (33) Through acquiescence or indifference, inaction provides a "form of encouragement and/or de facto permission," and CEDAW "has applied this principle to States parties' failure to prevent and protect victims from gender-based violence, such as ... domestic violence." (34)

    3. Violence Against Women in the Human Rights Context

      In 1994, the U.N. Commission on Human Rights adopted a resolution appointing a Special Rapporteur on the issue of violence against women ("SRVAW") in order to better understand its causes and consequences. (35) That human rights body has called for, among others, the elimination of all forms of gender-based violence in the family. (36) It defines gender-based violence as any act "that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." (37) Incorporating this general U.N. definition, in part, the CEDAW definition of gender-based violence focuses specially on women who are victims of "physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty." (38)

      The U.N. has further elaborated the various forms of violence, dividing them into three categories: (a) family violence; (b) community violence; and (c) violence perpetrated or condoned by the state. (39) Migrant domestic violence victims have fallen within all three categories because migrant women can suffer family violence in the form of domestic violence and honor violence; community violence in the form of female genital mutilation and trafficking; and violence perpetrated or condoned by the state in the form of violence during armed conflict and violence motivated by xenophobia. (40) In 2002, the U.N. High Commissioner for

      Refugees ("UNHCR") issued guidelines on gender-related protection claims. (41) The UNHCR Gender-Related Guidelines acknowledge a particular social group is comprised of individuals that share a common characteristic that is "innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights." (42)...

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