Question A
If Alina would like to file a complaint against the Netherlands with CEDAW, which procedural requirements must be fulfilled before the Committee will deal with her communication? (2 points)
The Committee on Elimination of Discrimination against Women (CEDAW) may consider individual communications alleging violations of the Convention on the Elimination of All Forms of Discrimination against Women. The complaints mechanism is contained in the Optional Protocol. States that are a party to the Optional Protocol recognize the competence of the Committee to receive complaints from persons within their jurisdiction alleging violations of their rights under the Convention. The Netherlands is a party to both the CEDAW and the Optional Protocol.
The Optional Protocol lays down certain procedural requirements for a communication to be considered in article 4. The requirements that need to be fulfilled for a communication are the following;
• The communication shall be in writing and shall not be anonymous.
• The communication must be submitted by, or on behalf of, an individual or a group of individuals under the jurisdiction of a State which is a party to the Convention and the Optional Protocol.
• The communication must refer to a State which is a party to both the Convention and the Optional Protocol.
• All domestic remedies need to be exhausted before bringing a communication.
• The claim must be sufficiently substantiated.
• The claim is not, nor has been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement.
• The complaint is compatible with the provisions of the Convention and is not an abuse of the right to submit a communication.
Question B
Do you think that the Netherlands has violated its obligations under the Women’s Convention in this case? Which provisions could possibly be at stake here? (2 points)
Alina has been the victim of trafficking and forced prostitution. CEDAW deals with these matters in article 6 where it states that Parties “shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” Police officers have regularly seen her sleep on the streets and have not taken any initiative carry out due diligence in order to find out what here situation is and why she was sleeping on the streets. In this object the police have failed to fulfill their duty. Furthermore after Alina sought help from the authorities in order to obtain a residence permit, she was denied one on the grounds that she has never contacted the authorities or the police about her situation before.
Since 2011, the IND has the discretion to grant victims of human trafficking a residence permit if they show that they are unable to file a criminal complaint or otherwise cooperate with the investigation and prosecution of the trafficker as a result of:
• a serious threat; and/or
• a medical or psychological condition.
Alina fulfills both criteria, she has not been able to go to the authorities out of fear for reprisals by the trafficker. Also she suffers from post-traumatic stress disorder which manifests itself by anxiety attacks, sleeping disorder and memory loss.
The IND regards the following as evidence that a victim of human trafficking is unwilling or unable to lodge a criminal complaint or otherwise cooperate with the investigation and prosecution as a result of a serious threat and/or a medical or psychological condition:
a. a statement from the police to the effect that the alien is a victim of human trafficking;
b. if applicable: a statement from the police to the effect that the alien cannot be expected to cooperate with criminal proceedings in connection with serious threats in the Netherlands from a human trafficker; or
c. if applicable: medical information showing that he or she has a physical or psychological condition that impedes cooperation with the criminal proceedings. The medical information must come from an attending physician entered in the Individual Healthcare Professions Register or in the register of the Dutch Association of Psychologists.
As mentioned, the police have seen Alina sleeping on the streets on numerous occasions. Accounts by them have been submitted to her counsel but these were not taken into account when she applied for shelter. These accounts can be submitted to the IND in order to substantiate her application for a residence permit. Furthermore, the psychological condition that she suffers from can be diagnosed by a physician and submitted to the authorities. On the basis of these findings, it becomes apparent that Alina fulfills both criteria and thus should have been granted a residence permit by the Dutch authorities.
The violations of human rights bestows specific responsibilities upon States, including the duty to act with due diligence. “Due diligence” is the standard that is used when assessing a breach of State obligations. Under international law a State is “responsible for the perpetration of an internationally wrongful act which is attributable to it through the conduct of its agents such as the police, immigration and border officials, prison officers or other public officials.”
The duty of due diligence applies to violations by both State and non-State actors. The requirement of due diligence is mentioned in the OHCHR Recommended Principles: “States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons”. Due diligence has been enshrined in several international human rights conventions, such as CEDAW, which states 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.
In Velasquez-Rodriguez, the Inter-American Court held that “international responsibility can be attributed to a State for an illegal act which, although not directly imputable to the State, nevertheless renders the State responsible because of the lack of due diligence to prevent the violation [of human rights] or to respond to it.” Further, the court stated that the State’s legal duty is to “implement the mechanisms necessary to prevent violations of the Convention and to engage in meaningful investigations of violations, as well as identify those responsible, impose punishment, and ensure compensation to the victim.”
In regards of due diligence the Netherlands has failed to conduct sufficient due diligence. It has not been able to protect Alina, the victim of trafficking, and has not provided her with the legal right to a residence permit. In doing so, the Netherlands has violated article 6 of CEDAW by not having engaged in due diligence and failed to “take all appropriate measures”.
Question C
Gender-based violence as such is not included in the Women’s Convention. Explain when and how this issue was put on the agenda of the international community. Mention two organs and two documents that have played and are still playing a significant role in creating awareness of violence against women and protection of the victims. (3 points)
During a long period the international community remained silent on the issue of GBV/VAW. Until the 1980s GBV was not considered a matter to be dealt with by international human rights law. It was considered to be a domestic matter of and thus it felt under the margin of discretion of the State parties. Because of the idea that GBV was considered to be a domestic matter, CEDAW does not contain a provision on violence against women. The burden of getting the topic of GBV back on the international agenda, rested entirely with civil society. Many NGO’s have strived throughout the years to get recognition for this important issue.
Several attempts were made to codify GBV/VAG at different occasions, e.g. the World Conference on Women in Mexico City (1975), Copenhagen (1980) and Nairobi (1985). These attempts did not reach the desired outcome that civil society strived for. Finally acting on a Recommendation by the Commission on the Status of Women, the General Assembly adopted the first resolution on domestic violence in 1985.
The gap was closed in 1992, when the CEDAW Committee, adopted General Recommendation No. 19 on VAW. The Recommendation clarifies that GBV against women is a form of discrimination and therefore covered by the scope of CEDAW. GBV is defined as “violence that is directed against a woman because she is a woman or that affects women disproportionately”, emphasizing that violence against women is not something random, but rather happening on the basis of their gender. GBV is further defined as including “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”
In order to combat GBV, States have the obligations to ensure that laws against GBV give adequate protection to all women, they must establish effective complaints procedures and remedies and undertaking preventive measures.
Question D
Prejudice and stereotyping play a significant role in maintaining discrimination against women especially when women do not behave in conformity with societal rules such as in this case because Alina worked as a prostitute.
Explain the obligations that States parties have under international human rights law to abolish or modify stereotypes and practices that are harmful to women and which measures they are expected to take in this regard. (3 points)
In accordance with CEDAW States are required to modify or transform “harmful gender stereotypes” and “eliminate wrongful gender stereotyping”. A stereotype is harmful when it limits women’s or men’s capacity to develop their personal abilities, pursue their professional careers and make choices about their lives and life plans. Gender stereotyping is wrongful when it results in a violation or violations of human rights and fundamental freedoms.
The Committee emphasized on the obligations by the States in General Recommendation No. 25, by identifying the obligation to “address prevailing gender relations and the persistence of gender-based stereotypes.”
Article 5 (a) CEDAW requires States to take “all appropriate measures” to “modify the social and cultural patterns of conduct of men and women” in an effort to eliminate practices that “are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” Article 2(f) requires States Parties to take “all appropriate measures” to “modify or abolish … laws, regulations, customs and practices which constitute discrimination against women.”
The Convention further states that Parties shall “ensure, on a basis of equality of men and women the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programs and the adaptation of teaching methods”.
The Committee has recommended several measures in order to implement the above:
• take comprehensive measures to overcome gender stereotypes that act as a barrier to the education of girls and women;
• ensure teachers receive gender training, with a view to eradicating gender stereotypes from both official and unofficial curricula;
• review and revise education materials, including textbooks, to eliminate gender stereotypes;
• implement programmes encouraging girls to pursue education and employment in non-traditional fields; and
• challenge the stereotypical beliefs of parents, teachers and community leaders regarding the importance and value of education for girls.