CYIL vol. 14 (2023)

CYIL 14 (2023) THE CONCEPT OF DUE DILIGENCE IN THE CONTEXT OF VIOLENCE AGAINST WOMENS… 3. Special due diligence in the context of violence against women and its applicability Having described the general term, it is now crucial to defend its role and applicability in relation to the topic of protection of women against violence. In this area, due diligence emerged in the 1990s. 11 The UN Declaration on the Elimination of Violence against Women 12 (DEVAW) and General Recommendation No. 19 to the Convention on the Elimination of All Forms of Discrimination against Women 13 (CEDAW) played a key role in this development as they identified due diligence as an essential tool for ensuring prevention and protection against this violence. 14 For a long time before that, this type of violence had been regarded as a purely private-law phenomenon outside the system of state responsibility under international law and beyond the mainstream discourse on gender-based discrimination. 15 Due diligence began to require the states to proactively take measures to prevent and respond to instances of violence against women. 16 If the state fails to make sufficient efforts to prevent and protect from this form of violence, it may be internationally responsible. The idea was embodied, that not preventing violence or failing to act when it occurs is just as problematic as acting directly. 17 This connection between due diligence and violence against women was revolutionary. 18 Its introduction brought a new understanding of violence against women as a structural human rights issue that requires the proactive involvement of the state and the establishment 11 See Report of the Inter-American Commission on Human Rights no. 54/01 of 16.04.2001 in Maria da Penha v Brasil. 12 Resolution of the UN General Assembly no. 2263 (XXII). Declaration on elimination of violence against women. 07.12.1967, A/RES/22/2264. [online]. [Accessed 11.03.2023]. Available from: https://www.eods.eu/library/ UNGA_Declaration%20Women_1967_en.pdf, art. 4/c). 13 CEDAW Committee. General comment no. 19: Violence against women. 30.01.1992, A/47/38. [online]. [Accessed 23.04.2023]. Available from: https://www.refworld.org/docid/52d920c54.html. 14 EMERTON, R., et al. International Women’s Rights Cases . London: Cavendish Publishing, 2005. ISBN: 978-1 859-41906-9, p. 42. 15 ECOSOC. Report of the Special Rapporteur on violence against women, its causes and consequences: The Due Diligence as a Tool for the Elimination of Violence against Women . 20.01.2006, E/CN.4/2006/61. [online]. [Accessed 16.02.2023]. Available from: https://www.refworld.org/pdfid/45377afb0.pdf, §§ 100–101. (ECOSOC, 2006). 16 CEDAW Committee. General comment no. 19, op. cit., § 9; DEVAW, art. 4/c); Views of the CEDAW Committee of 06.08.2007 in Fatma Yildirim v Austria , no. 6/2005, § 12.1.5; UN. Beijing Declaration and Platform for Action. 27.10.1995, A/CONF.177/20 (1995), A/CONF.177/20/Add.1 (1995). [online]. [Accessed 16.02.2023]. Available from: https://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf, § 124/b; Resolution of the Commission on Human Rights no. E/CN.4/RES/1994/45, Question of integrating the rights of women into the human rights mechanisms of the UN and the elimination of violence against women , 04.03.1994. [online]. [Accessed 14.02.2023]. Available from: https://www.refworld.org/docid/3b00f47f4.html, § 2. 17 Judgment of the IACtHR of 29.07.1988 in Velásquez Rodríguez v Honduras, § 136; ECOSOC. Integration of the Human Rights of Women and the Gender Perspective, Violence against Women. Report of the Special Rapporteur on violence against women, its causes and consequences . 10.03.1999, E/CN.4/1999/68. [online]. [Accessed 22.04.2023]. Available from: https://digitallibrary.un.org/record/271024. (ECOSOC, 1999). 18 See ABI-MERSHED, Elizabeth A. H. Due diligence and the fight against gender-based violence in the Inter American system. Due Diligence and Its Application to Protect Women from Violence [online]. Brill Nijhoff, 2009, 2009-01-01, 127-137 [Accessed 06.03.2023]. ISBN 9789004180888. Available from: https://brill.com/display/ book/edcoll/9789004180888/Bej.9789004162938.i-300_009.xml, p. 128.

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