CYIL vol. 14 (2023)

CYIL 14 (2023) THE CONCEPT OF DUE DILIGENCE IN THE CONTEXT OF VIOLENCE AGAINST WOMENS… 1. Introduction Due diligence is a general concept or a standard found in many areas of public international law, one of them being the international law of human rights. 1 It relates to the state’s responsibility for human rights violations committed by non-state actors. Due diligence asks whether the state has made sufficient efforts to ensure its prevention, and whether the authorities have acted with the necessary level of diligence, care, and effort when dealing with the aftermath of the violation. One of the particular sub-fields where due diligence appears is the protection against violence against women, 2 which is also the focus of the current article. Its ambition is to approach this topic combining theoretical foundations with practical experience from working with victims of violence against women 3 that the author obtained in her practice. The article responds to two layers of the issue that have not yet been fully explored in Czech research. Firstly, the exact content and scope of special due diligence in the researched area may sometimes appear blurred (or at least certain states tend to claim so). Hence, this article aims to map out its borders as found in international documents and the decision-making practice of human rights bodies in larger detail. Secondly, drawing on her experience from the field work with victims, the author critically assesses the scope of due diligence in the context of violence against women. Here rests the article’s main argument: the author concludes that the applicability of due diligence in the area of protection of women against violence is crucial and vital. At the same time, there is room for improvement of its specific content so that it could better reflect needs and vulnerability of victims themselves. 2. Due diligence and its emergence in the field of human rights Originally, due diligence emerged in the 19 th century in the area of treatment of foreign nationals and law of neutrality. 4 At its roots stood the principle that a state may not use its own territory in a way that would harm any other state. 5 With time, it seeped into other areas of international law, such as investment law (even economics) 6 or environmental law. 7 In this 1 ŠTURMA, P., „Náležitá péče” v mezinárodním právu: obecný pojem s variabilním obsahem. [“Due care” in international law: a general concept with variable content] Právník [online]. Prague: Institute of State and Law of the Czech Academy of Sciences, 2021, 2021(6), 401–415 [Accessed 05.03.2023]. Available from: https://www. ilaw.cas.cz/upload/web/files/pravnik/issues/2021/6/1_Sturma_401-415_6_2021.pdf, p. 414. 2 See COUNCIL OF EUROPE. Ad hoc Committee on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO), The Duty of Due Diligence . 21.05.2010, Strasbourg, CAHVIO (2010) 7. [online]. [Accessed 22.04.2023]. Available from: https://rm.coe.int/1680593fc8. 3 Term “violence against women” is used throughout the article in the meaning of “gender-based violence against women”. 4 FRENCH, D. and STEPHENSILA, T., Study Group on Due Diligence in International Law. First Report. 07.03.2014. [online]. [Accessed 20.07.2023]. Available from: https://olympereseauinternational.files.wordpress. com/2015/07/due_diligence_-_first_report_2014.pdf, p. 2; ŠTURMA, op. cit., p. 402. 5 See Arbitration award of 14.09.1872, United States of America v the Great Britain (Alabama claims); Judgment of the International Court of Justice of 09.04.1949, United Kingdom v Albania (Corfu Channel). 6 FRENCH, STEPHENSILA, op. cit., p. 6. 7 See Judgment of the International Court of Justice of 20.04.2010, Argentina v Uruguay (Pulp Mills on the River Uruguay).

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