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THE ROLE OF SOCIAL MOVEMENTS IN THE RECOGNITION
OF GENDER VIOLENCE AS A VIOLATION OF HUMAN RIGHTS:
FROM LEGAL REFORM TO THE LANGUAGE OF RIGHTS∗
MANUEL CALVO GARCÍA1
Abstract: The history of rights shows that the struggle for the recognition of women’s rights was difficult
enough and the recognition of the right of women to a life without gender violence has been even more
difficult. With a perspective based in a socio-legal and critical approach, this article defends that the
recognition of the right of women to a life free of gender violence must be seen as a conquest of the
feminist movement and women’s organizations. It was the struggle of the feminist movement which
provided the catalyst for the recognition of women’s rights and the specific right of women to a life free
of gender violence and to protection against such violence. But not only the recognition, also the praxis of
the right of women to a life free of gender violence is important. The right of women to a life free from
gender-based violence cannot be fully realized without the implementation of this right at the
international and the local level. The implementation of rights and the existence of social movements
involved with the right to a life free from gender violence is decisive to transforms the demands for
protection from violence and its eradication to be see not as a question of mercy, but as a question of
justice; and putting the individual experiences of gender violence victims within a wider framework from
which the abuse can be considered as a social problem.
Keywords: Violence against women; gender violence as a violation of human rights; human rights and
social movements; feminist movement and women’s organizations.
Summary: I. LEGAL REFORMS AND THE STRUGGLE AGAINST GENDER VIOLENCE; II. VIOLENCE AGAINST
WOMEN AS A HUMAN RIGHTS VIOLATION; II.1. The recognition of women’s rights as “human rights”; II.2.
The specification of gender violence as a violation of rights; III. RIGHTS AGAINST GENDER-BASED
VIOLENCE.
Gender violence was not regarded as being worthy of juridical intervention until
quite recently. This obviously does not mean that it is a new phenomenon in our society.
On the contrary, it has always existed. However, it was not acknowledged –being
hidden behind the veil of “privacy” or “intimacy” or, even worse, it was justified within
the context of a patriarchal ideology. Consequently, actions deserving social reproach –
as well as being against the most basic rights of equality and dignity of individuals–
∗ This work has been undertaken within the project ‘The Treatment of Gender Violence in the
Administration of Justice. Implementation and Effectiveness of LO 1/2004’ (DER2014-55400-R).
1
Professor of Legal Philosophy and Sociology of Law, University of Zaragoza, Spain
(mcalvo@unizar.es).
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MANUEL CALVO GARCÍA
escaped legal and judicial intervention.
In the final decades of the last century, the activities of feminist groups and
women’s organisations –together perhaps with a modest contribution from scientific
research– produced an awareness of the real significance and scale of a question of
human nature of the utmost seriousness. Society and institutions in general became
increasingly aware of this problem which eventually began to be regarded as being both
reprehensible and punishable. Gradually, legal mechanisms of control and social
integration began to produce measures –essentially punitive – to confront this problem.
Little by little, legal action also became more extensive and mechanisms for
intervention went further than merely punitive measures through the development of
regulations and public policies aimed at preventing aggression and protecting the
victims of gender violence.
The history of rights shows that while the struggle for the recognition of
women’s rights was difficult enough, the recognition of the right of women to a life
without gender violence has been even more difficult. An illustration of this is the fact
that the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) in 1979 did not specifically include gender violence. Subsequently, the
General Recommendations nº 12 (1989) and nº 19 (1992) of the Committee on the
Elimination of Discrimination against Women redressed this “oversight”, emphasising
that gender violence is a form of discrimination against women. Here again, as will be
explained in detail in this paper, it was the struggle of the feminist movement which, in
parallel with the development of forms of legal intervention for the eradication of
gender violence, provided the catalyst for the recognition of women’s rights. This was,
perhaps, the penultimate step in achieving the recognition of the specific right of
women to a life free of gender violence and to protection against such violence.
Progressively, through the activism of women’s organisations and the feminist
movement, it has come to be recognised that gender violence not only harms women’s
rights but is a clear violation of those rights.
The focus of this paper may be linked with the propositions of Charles Tilly
(2004) when he posed the question “Where Do Rights Come From?”. This is clearly a
provocative title, like the thesis which this article contains. In Tilly’s opinion, the
question can be asked from an analytic philosophical, a metaphysical or a rational action
standpoint. But he understands, along with Moore, Tarrow and other authors involved in
socio-historical research, that rights are first “historical products” and second “outcomes
of a struggle” (Tilly 2004: 273). The lack of attention to the political dimension of
rights and to the relationship between social movements and human rights is quite
difficult to explain (Stammers 2009). Given this background, the socio-juridical and
critical perspective on which this work is based seeks to provide the conceptual and
practical tools necessary to show these connections. More specifically, this approach
allows the recognition and the praxis of the right of women to a life free of gender
violence to be seen as a conquest of the feminist movement and women’s organisations.
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THE ROLE OF SOCIAL MOVEMENTS IN THE RECOGNITION OF GENDER VIOLENCE AS A VIOLATION OF
HUMAN RIGHTS: FROM LEGAL REFORM TO THE LANGUAGE OF RIGHTS
I. LEGAL REFORMS AND THE STRUGGLE AGAINST GENDER VIOLENCE
Women’s organisations made a decisive contribution to putting gender violence
in the public arena and to developing mechanisms for its eradication by arguing that the
problems of abused women were not simply individual problems, but a general social
problem requiring political and juridical intervention. With this in mind, the feminist
movement –especially at its early stages and particularly in the English-speaking world–
fostered a strategy of social change based on policies of criminal intervention which
marked the way ahead for the global movement against gender violence.
The demands for legal intervention should be analysed in relation to the need to
break the dead weight of the veil of privacy prevalent in a liberal legal culture. The
demands of the feminist movements for legal intervention in the sphere of private
relationships was a direct result of the fact that family privacy had repeatedly been used
as a justification for not allowing judicial interference in the private sphere which, it
was claimed, should be kept outside the public scrutiny of the courts and legal
intervention. As an example of this doctrine and its consequences, the decision of the
Supreme Court of North Carolina given in the State versus A. B. Rhodes in 1868 is
frequently cited:
…however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only
temporary pain, they are not comparable with the evils which would result from raising the
curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber. Every
household has and must have, a government of its own, modeled to suit the temper, disposition
and condition of its inmates. Mere ebullitions of passion, impulsive violence, and temporary
pain, affection will soon forget and forgive, and each member will find excuse for the other in
his own frailties. But when trifles are taken hold of by the public, and the parties are exposed and
disgraced, and each endeavors to justify himself or herself by criminating the other, that which
ought to be forgotten in a day, will be remembered for life2.
This doctrine was repeated in innumerable subsequent judgements and persisted
until the final decades of the last century, thereby guaranteeing criminal and civil
immunity for aggressors (Siegel 1996).
The need to break with the sanctification of the private sphere drove the
tendency of feminist movements to fight for state intervention. This proposition is
defended by Kristin A. Kelly (2003: 59 ff.), concentrating more on the indirect
symbolic functions of juridical intervention than on the direct social control functions of
the legal norms. In this context, the author analyses the feminist movement against
domestic violence in the USA in the 1970s, a movement which emerged from the public
exposure of such violence, from the perspective of the awareness of the problem which
had the effect of battered women starting to share experiences –which contributed to
deprivatizing the problem. This strategy is considered from the perspective of a
movement of abused women fundamentally in the fight to achieve reforms “that would
2 Available at: http://faculty.uml.edu/sgallagher/StatevRhodes.htm [last visited: January - 2015].
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MANUEL CALVO GARCÍA
make the legal system take domestic violence more seriously” (Kelly 2003: 68).
The “juridification” of domestic violence was regarded as the most important
means of achieving the recognition of gender violence within families as being a matter
of public interest, and the law is seen in this sense as “the” instrument for definitively
making it clear that domestic violence is a social problem. In countries where the law is
considered to be one of the principal means of reinforcing values, the actions of feminist
collectives and in particular of lawyers representing battered women focussed on
developing legal and regulatory instruments aimed at empowering victims of abuse,
both increasing their protection and at the same time increasing the sanctions against
their assailants (Kelly 2003: 70).
This tendency resulted from the confluence of a series of factors which include,
in the first place, the actions of women’s movements and defenders of women victims
of abuse in favour of using criminal law to provide justice and redress the lack of
consideration of the rights of women who suffer violence for reasons of gender, which
turned their situation into an issue of public and political concern. But also, in the
second place, because the policies of control make criminal law an area particularly
attractive for legal reform and, what’s more, at “low cost”3.
Legal reform as a strategy against domestic violence was largely based on the
indirect symbolic functions of juridical intervention and, in particular, of criminal
reform, showing a clear tendency to use coercive judicial mechanisms to solve “social
problems” and especially to deal with the phenomenon of violence against women4. In
this context, the social demands of women turned into juridical demands. More
specifically, these reforming processes were principally focussed on criminal law,
which contributed to effecting a reduction in the objectives and actions in the struggle to
end gender violence. Furthermore, a strategy based on legal reform structured around
criminal reform can be seen as one of the conditions responsible for the initial lack of
debate about human rights in the USA5 and in other ambits (Bodelón 2012).
On the other hand, the margins of the welfare state opened up important areas of
action for social reformers. The movement of women against domestic violence started
from the bottom up, initially with the setting up of refuges for victims of abuse in the
early 1970s, first in the UK (1972) and almost simultaneously in the USA (Minnesota,
1973; Boston, 1974)6. The women’s movement developed from these initiatives and
3 “Many politicians who oppose increases in public expenditure on ‘social programmes’ are more than
happy to allocate resources to ‘the fight against crime’” (Coker, 2001: 802-3).
4 Buzawa and Buzawa 2003: 4. This trend is changing as can be seen in the fourth edition of the cited
work (Buzawa, Buzawa and Stark 2012: 11 ff.).
5 Schneider 2008: 358. The reflections made by Elizabeth Schneider, half way between legal activism
directed towards social reform and theory, are especially interesting. In her opinion legal reform does not
exclude a recognition of the possibilities of international human rights law as a valid instrument
applicable at a local level (Schneider 2000: 53 ff.).
6 Dobash and Dobash 2003: 25 ff., 60 ff. This movement gradually became more widespread. In Spain
the first refuges opened in Madrid in 1986 and in Barcelona in 1987 (Bodelón: 2002: 339-348).
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THE ROLE OF SOCIAL MOVEMENTS IN THE RECOGNITION OF GENDER VIOLENCE AS A VIOLATION OF
HUMAN RIGHTS: FROM LEGAL REFORM TO THE LANGUAGE OF RIGHTS
gender violence started to become visible in society. But little by little the social
movements also claimed the right to actively use the transforming ability of juridical
mechanisms and this led to intervention from the social policies with the objectives of
victims’ protection and social transformation. As R. Emerson Dobash and Russell P.
Dobash point out, “interventionist and welfare states provide greater opportunities for
reformers attempting to effect changes within the institution of the state. The goal may
be to introduce state involvement where once there was none or to alter existing
policies, practices and legislation relating to particular groups or social issues”.
Women’s movements frequently resorted to this alternative. The authors continue
emphasizing the point that “it is critical that the battered women’s movements in Britain
and the USA began in the 1970s when governments were generally more interventionist
and welfare oriented” (Dobash y Dobash 2000: 189).
In short, legal reform led to considerable advances, but eradicating gender
violence and stamping out its causes required going one step further: to open the door to
women’s rights and to seek intervention from the perspective of formulating policies to
transform social relations in order to put an end to the discrimination and power
asymmetry which feed gender violence. Why is it that such a commitment was not
made in 1970 when the first steps towards legal reform were taken? Simply because the
“right” of women to a life free of gender violence and to protection against such
violence was not taken into account either at local or international levels. The idea of
gender violence as a violation of a specific right of women took a long time to arrive. It
took hold in the mid 1980s and particularly in the 1990s when the language of rights
entered into the discourse and the political struggle of women to eradicate gender
violence7. From then onwards, gender violence began to feature more prominently in
the international agenda of organisations defending women’s rights and was finally
considered both nationally and locally as a violation of those rights.
II. VIOLENCE AGAINST WOMEN AS A HUMAN RIGHTS VIOLATION
II.1. The recognition of women’s rights as “human rights”
The omission of women’s rights or their relegation to a position of minor
importance in the most significant legal reforms of the 1970s and 1980s was the result
of the omission of women in the general discourse of rights. If the 19th century was the
century of the rights of “man”, much the same can be said of most of the 20th century.
Quite apart from this play on words, it has to be said that the omission of women from
international human rights law was not merely a linguistic slip. The Charter of the
United Nations made way for the development of women’s rights, but the Universal
Declaration of Human Rights persisted with the omission, which was not merely a
7 Sally Engle Merry (2009: 25) explains that in the 1970s and 1980s the movement against the abuse of
women showed domestic violence to be a social problem and identified it as gender violence. Later,
especially in the 1990s, these movements began to be associated with the human rights movement at both
a national and an international level.
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question of terminology. When the option of giving some prominence to women in the
text of the Declaration was excluded from the drafting discussions, this also represented
a rejection of the opportunity to emphasize the equivalence of the rights of women and
men. In the interests of apparent universality and neutrality, a more decisive declaration
in favour of the eradication of gender discrimination and the defence of the specific
rights of women was left aside.
Women’s rights made progress thanks to the incorporation of women into
international organisations and the activities of women’s organisations. The first
significant advance in the development of women’s rights occurred with the setting up
of the Commission on the Status of Women within the framework of the United Nations.
The advance of women in the public sphere at the time in which the Universal
Declaration appeared was not reflected in the text, but it was an unavoidable reality.
Arvonne S. Fraser (2007: 43 ff.) gives a detailed description of this important period in
the origins of women’s rights. According to her, the development of women’s
organisations and the increasing presence of women in national delegations was the
result of the progress made by the women’s movement. Women had begun to access the
labour market, the suffragettes had been successful in 31 countries and gradually, led by
delegates from Latin American countries, women began to have a clear presence in the
United Nations. Minerva Bernardino of the Dominican Republic, one of the four
women who signed the Charter of the United Nations, proposed the creation of a
Committee within the framework of the Commission on Human Rights to work on the
promotion of women’s rights. After overcoming numerous objections, initially
including the opposition of the powerful Eleanor Roosevelt, the Commission on the
Status of Women of the United Nations was finally established on 21 June 1946.
This Commission played a fundamental role in the development of women’s
rights. It was responsible for the drafting of the Declaration on the Elimination of
Discrimination against Women, adopted by the General Assembly on 7 November
1967, the precursor of the Convention on the Elimination of All Forms of
Discrimination against Women, adopted in 1979. The Commission on the Status of
Women of the United Nations also organised the United Nations Decade for Women and
the World Conferences on Women held in Mexico, Copenhagen and Nairobi8.
These initiatives changed the discourse of the United Nations and gave rise to
the emergence of women as political agents and as having human rights, overcoming
the limitations of discourses anchored in the language of the traditional “family of
nations”, with its stereotypes and its implicit subordination of women. Networks and
organisations of women with political experience demanded an end to sexual
stereotypes and gender discrimination. They used the platform of the United Nations to
8 This Decade was started after the World Conference of the International Women's Year held in Mexico
City in 1975 and continued until 1985. During the decade two other World Conferences on Women were
held: the World Conference on the United Nations Decade for Women: Equality, Development and Peace
(Copenhagen, 1980) and the World Conference to Review and Appraise the Achievements of the UN
Decade for Women (Nairobi, 1985).
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exercise their rights, opportunities and responsibilities in equal measure to men, and to
create a new international order – economic, social and political9.
Another fundamental milestone in this period was the Convention on the
Elimination of All Forms of Discrimination against Women10. This Convention
completed and gave legal backing to the Declaration on the Elimination of
Discrimination against Women, stating the degree of concern regarding the continuance
of generalised discrimination against women despite the Charter of the United Nations,
the Universal Declaration of Human Right, the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political Rights
(Gómez-Isa 2003: 298 ff.; Southard 1996). The adoption of the CEDAW was followed
by a large number of international and regional human rights instruments. National
governments were obliged to adopt measures and policies leading to the protection,
observance and application of the rights of women11.
These initiatives gained strength in a widespread and influential movement
which contributed decisively to the recognition of women in the international sphere.
The feminist movement had for many decades ignored the need to respond to the praxis
of human rights that clearly failed to recognise women’s rights. In the 1980s a
movement for the defence of women’s rights emerged internationally from the
grassroots of civil society which articulated the slogan “women’s rights are human
rights”. This bottom-up movement was involved in various activities ranging from the
organisation of a defence network for the rights of women in the Philippines to the
Encuentro feminista de mujeres latinoamericanas y del Caribe (Feminist Meeting of
Latin American and Caribbean Women) in Bogotá (1981), which declared 25
November as the International Day for the Elimination of Violence against Women, and
many other specific initiatives organised all over the world (Reilly 2009: 71). One of the
most fruitful manifestations of this movement was related to the emergence and
initiatives developed around the Global Campaign for Women's Human Rights and its
Global Tribunal on Violations of Women's Human Rights12.
Taking this process as a basis, Niamh Reilly has convincingly argued that the
progress of women’s rights in the 1980s “did not happen suddenly or by accident. It was
the result of well-organized, broad-based, transnational collaboration among diverse
women’s rights advocates and NGOs –wherein the activities of the Global Campaign
for Women's Human Rights played a major part” (Reilly 2009: 73). Although the
9 Zinsser (2002: 144) has shown that the official documents of the Decade reveal that women had in fact
modified the prevailing discourse.
10 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979. It
came into force on 3 September 1981. At the time of writing, 188 countries have ratified the Convention
[https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-8&chapter=4&lang=en, last
visited January 2015], attesting to the weight of the treaty in the international sphere of human rights. For
the history of the Convention, see Reilly 2009: 46 ff.
11 For an up-to-date account of the impact of the CEDAW, see Englehart and Miller (2014: 25 ff.).
12 See Bunch and Reilly (1999) for a detailed description of the bottom-up organisational features and the
strategies of both campaigns, together with the main documentary sources.
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women’s movement developing from the Decade and the United Nations conferences in
1975-1985 and culminating in the 1990s was very complex and was not free from the
ideological and political struggles of the period (Ghodsee 2010: 3–12, Olcott 2010),
there is absolutely no doubt that it provided the necessary spark and the decisive action
in the period leading up to and during the World Conference on Human Rights held in
Vienna in 1993, which finally resulted in women’s rights being fully recognised as
human rights13.
II.2. The specification of gender violence as a violation of rights
The issue of violence against women was first specifically raised in 1980 at the
World Conference on the United Nations Decade for Women held in Copenhagen in the
context of the struggle against discrimination and the emergence of women rights
described above. Its 48 resolutions included one entitled “Battered women and violence
in the family” in which it is stated that domestic violence and violence against women
in general represent “a problem of serious social consequences that perpetuates itself
from one generation to the next”, a situation which is made more serious by the
immunity from prosecution of persons who commit such acts of violence14. In fact, this
issue had been a theme running through the debates and reports of the World
Conference of the International Women's Year held in Mexico in 1975, and was even
more apparent in the Third World Conference on Women which took place in Nairobi
in 198515. It should be emphasized that these declarations were drafted within the
context of the struggle for women’s rights led by the feminist movement during the
United Nations Decade for Women (1975-1985)16. It has also been pointed out that
these developments were very much the result of the fact that the majority of the
government delegates were women. Credit must also be given to the work of forums
representing NGOs undertaken in parallel with these conferences (Reilly 2009: 57-
58)17.
13 UN-Vienna Declaration and Programme of Action, adopted by the World Conference on Human
Rights on 25 June 1993, (A/CONF.157/23), paragraph 18.
14 UN-Report of the World Conference of the United Nations Decade for Women: Equality, Development
and Peace, Copenhagen, 14-30 July 1980, A/CONF.94/35.
See: http://www.un.org/womenwatch/daw/beijing/copenhagen.html (last visited January 2015).
15 Paragraph 231 of the report of the Nairobi conference calls for the adoption of effective measures to
identify, prevent and eradicate domestic violence against women and children and the implementation of
all kinds of measures for their protection and to impose sanctions on those guilty of such acts of violence.
UN-Report of the World Conference to Review and Appraise the Achievements of the United Nations
Decade for Women: Equality, Development and Peace (Nairobi, 15-26 July 1985) United Nations, New
York, 1986. Nairobi Forward-looking Strategie [http://www.un.org/womenwatch/confer/nfls/].
16 UN-Advancement of Women, In-depth study on all forms of violence against women: Report of the
Secretary-General (A/61/122/Add.1), 2006, (A/61/122/Add.1), p. 16 s. Subsequently published as:
Ending violence against women: from words to action. Study of the Secretary-General, electronic
resource: http://www.un.org/womenwatch/daw/vaw/publications/English%20Study.pdf (last visited
January 2015). This study includes contributions from a wide-ranging group of experts and is an
important reference for the development of the right of women to a life free from gender violence.
17 For the role of NGOs in this process, see Tinker 1999: 95 ff.
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THE ROLE OF SOCIAL MOVEMENTS IN THE RECOGNITION OF GENDER VIOLENCE AS A VIOLATION OF
HUMAN RIGHTS: FROM LEGAL REFORM TO THE LANGUAGE OF RIGHTS
The discourse on violence against women in the 1970s and 1980s was closely
connected with the language of legal reform and the urgency of making progress in
protecting victims and prosecuting aggressors. However, despite some exceptions, there
was little direct use of the language of rights18. This may be the explanation for the
“oversight”, mentioned above, of gender violence in the CEDAW and its revival in the
discourse and the claims of women’s rights in the 1980s. The feminist movement had
based its demands for legal and social intervention on facts. Scientific knowledge and
the work of women’s organisations had brought to light a reality which was very
widespread in our society and which it was difficult to continue to ignore behind the
veils of intimacy or the private sphere. This knowledge and the existing data also began
to be taken into account in the feminist movement for the defence of women’s rights
and gradually permeated the activities of international organisations. The culmination of
this process, which brought gender violence and especially domestic gender violence
out into the open, can perhaps be found in the study on the extent of domestic violence
published in 198919.
The above explains why the consideration of gender violence as a violation of
women’s rights was given after the adoption of the CEDAW in two general
recommendations of the Committee on the Elimination of Discrimination against
Women: General recommendation No. 12, eighth session, 1989; and General
recommendation No. 19, eleventh session, 199220. These recommendations place a
specific obligation on states party to the Convention to protect women from any type of
violence, including gender violence in the domestic sphere21. The Committee firmly
establishes in General recommendation No. 19 that violence against women is a further
form of discrimination against women “that seriously inhibits women's ability to enjoy
rights and freedoms on a basis of equality with men”. First, it establishes as a general
observation that the definition of article 1 of the Convention:
…includes gender-based violence, that is, violence that is directed against a woman because she
is a woman or that affects women disproportionately. It includes acts that inflict physical, mental
or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.
Gender-based violence may breach specific provisions of the Convention, regardless of whether
those provisions expressly mention violence (paragraph 6).
In virtue of this, it is concluded that:
Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and
18 Paradoxically, while questioning the omission of women’s rights in the discourse on human rights,
Frank Hosken makes no reference to violence against women in his presentation to a “symposium on
Women and International Human Rights” held at the time to define the rights of women (Hosken 1981: 1-
10).
19 Centre for Social Development and Humanitarian Affairs – Office of the United Nations in Vienna,
Violence Against Women in the Family, United Nations, New York, 1989.
20 Freeman et al., 2012: 447 ff.
21 Freeman et al., 2012: 454 ff.
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fundamental freedoms under general international law or under human rights conventions, is
discrimination within the meaning of article 1 of the Convention (paragraph 7)22.
Another of the fundamental advances of this Recommendation is to put an end to
the argument that gender violence can not be considered a violation of rights on the
grounds that it originates in private acts or in the private sphere23. Thus, it states that:
discrimination under the Convention is not restricted to action by or on behalf of Governments
(see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States
parties to take all appropriate measures to eliminate discrimination against women by any
person, organization or enterprise. Under general international law and specific human rights
covenants, 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 (Paragraph 9).
In short, violence against women was explicitly considered as a violation of
women’s rights for which states have responsibilities and obligations. For this reason,
states were requested to inform the Committee of measures adopted to overcome such
violence24. Similarly, with the coming into force of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women25 states
were given the opportunity to report to the Committee on any violation of rights related
with the prohibition of gender violence as set out in the Convention in accordance with
the interpretations of the General Recommendations 12 and 19 (Facio et al 2009: 79 ff.).
As stated above, another important landmark in the definitive incorporation of
the language of rights in the fight against gender violence can be found in the World
22 General recommendations adopted by the Committee on the Elimination of Discrimination against
Women (CEDAW) [http://www.un.org/womenwatch/daw/cedaw/recommendations/index.html, last visited
January 2015].
23 The duality of public-private spheres has served to avoid scrutiny on the part of international human
rights law of private acts of torture and abuse and, in particular, to cover up the “subordination of women
in the private sphere”. Vid. Chinkin (1999: 392 ff.). The reflections of Hilary Charlesworth (1999: 382-
383) are of interest here, pointing out that the consequences of this distinction are not neutral from the
gender perspective given that in our society men dominate the public spheres of politics and government
while women tend to see themselves as being more limited in the private sphere of the home and the
family.
24 Rashida Manjoo, Report of the Special Rapporteur on violence against women, its causes and
consequences, submitted to the General Assembly, 1 August 2011 (A/66/215): “19. The prevalence of
violence against women remains a global concern. For example, in the majority of the 21 countries
considered by the Committee on the Elimination of Discrimination against Women in 2010, representing
all regions, prevalence of violence was either high, persistent or on the increase. The Committee had
already explicitly linked discrimination against women and gender based violence in its general
recommendations No. 12 (1989) and No. 19 (1992). It constantly calls on States parties to include in their
reports to the Committee information on violence and on measures introduced to overcome such
violence”. Avalaible at:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/439/45/PDF/N1143945.pdf?OpenElement,
last visited January 2015
25 Resolution of the General Assembly, October 1999 (A/RES/54/4). This protocol came into force on 22
December 2000 and was ratified by Spain in July 2001. Vid., on the protocol, Felipe Gómez Isa (2003:
291-321).
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Conference on Human Rights held in 1993 which, as we have seen, asked the General
Assembly to adopt the draft Declaration on Violence against Women and urged states to
combat violence against women in accordance with the terms of the Declaration26.
Following the demands made at the Vienna Human Rights Conference in 1993
and the transformation of the claims occurring in the feminist movement27, the General
Assembly adopted the Declaration on the Elimination of Violence against Women at the
end of 1993. The Declaration makes it clear that violence against women is not only an
obstacle to achieving equality, development and peace, as recognised by the Nairobi
conference. It also represents an obstacle to the full application of the Convention on the
Elimination of All Forms of Discrimination against Women. Following
Recommendation 19 of the Committee it categorically states that “violence against
women constitutes a violation of the rights and fundamental freedoms of women and
impairs or nullifies their enjoyment of those rights and freedoms”. This Declaration is
drawn up from a gender perspective, clearly stating that:
violence against women is a manifestation of historically unequal power relations between
men and women, which have led to domination over and discrimination against women by
men and to the prevention of the full advancement of women, and that violence against
women is one of the crucial social mechanisms by which women are forced into a
subordinate position compared with men 28.
Another fundamental step in the recognition of the right of women to a life free
of gender violence was Resolution 1994/45 of the Commission on Human Rights,
adopted on 4 March 1994, under which it was decided to appoint a Special Rapporteur
on violence against women, including its causes and consequences29. This established
the first human rights mechanism specifically to deal with violence against women.
Radhika Coomaraswamy from Sri Lanka was appointed as the first Special
Rapporteur30. Her mandate was to seek and receive information from governments on
26 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on
25 June 1993 (A/CONF.157/23), paragraph 38.
27 Sylvia Walby (2002) makes the following interesting reflection: “By the early 1990s this demand to
stop men’s violence against women …was translated into language and concepts more appropriate for the
predominantly male forum of the UN, that is the language of human rights rather than men’s oppression
of women. The demands were that women’s rights were human rights, and that violence against women
constituted a violation of women’s human rights. This was a call for the transformation of the existing
agenda of human rights and for a new interpretation that placed women’s issues at the heart of the
mainstream”.
28 Declaration on the Elimination of Violence against Women (A/RES/48/104). General Assembly
resolution 48/104, 20 December 1993.
29 The United Nations Commission on Human Rights in resolution 1994/45, adopted on 4 March 1994,
decided to appoint a Special Rapporteur on violence against women, including its causes and
consequences. The mandate was extended by the Commission on Human Rights in 2003, at its 59th
session in resolution 2003/45.
30 Radhika Coomaraswamy occupied the position until 2003. Her successor was Yakin Ertürk, from
Turkey who held the post until 2009. Since then Rashida Manjoo, from South Africa, has been in the
post.
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violence against women, including domestic violence, and to recommend measures to
eliminate such violence. Since 1994, by means of thematic reports, missions to various
countries, consultations, meetings with experts, communications with governments and
other mechanisms, the Special Rapporteur “has studied the forms, prevalence, causes
and consequences of violence against women; analysed the legal and institutional
developments in the protection of women against violence and the remaining
challenges; and provided key recommendations to Governments and to the international
community to overcome such challenges”31.
The continuity of these milestones can be seen in many other developments
including the Fourth World Conference on Women (4-15 September 1995; Beijing,
China). After recalling in paragraph 8 the need to implement the rights listed in the
Declaration on the Elimination of Violence against Women, this Conference established
in paragraph 29 of the Declaration and Platform for Action, as approved by
governments, the need to “Prevent and eliminate all forms of violence against women
and girls”.
From this moment on, several resolutions and reports were issued within the
system of the protection of human rights of the United Nations. Among these, of
particular note is the uncompromising stance against gender violence evident in the
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment of 200832. In this report, citing Rhonda Copelon (1994),
gender violence is treated as a cruel, inhuman and degrading form of torture or
punishment. Parallels are drawn with various other forms of violence against women
and other actions recognised as torture:
45. As with female detainees who experience torture, battered wives may be beaten with
hands and objects, kicked, strangled, stabbed or burned. Rape and other forms of sexual
abuse are used by intimate partners as well as by prison guards or police officers. In both
scenarios, physical violence is usually accompanied by insults, varied forms of humiliation,
and threats to kill or harm the victim or her family members (often children). Domestic
violence, as well as torture, tends to escalate over time, sometimes resulting in death or
leaving women’s bodies mutilated or permanently disfigured. Women who experience such
violence, whether in their homes or in a prison, suffer depression, anxiety, loss of self-
esteem and a feeling of isolation. Indeed, battered women may suffer from the same intense
symptoms that comprise the post-traumatic stress disorder identified in victims of official
31 Rashida Manjoo, Report of the Special Rapporteur on violence against women, its causes and
consequences, submitted to the General Assembly, 1 August 2011 (A/66/215). Electronic version:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/439/45/PDF/N1143945.pdf?OpenElement (last
visited January 2015). The report offers a general overview of the work carried out during her mandate, as
well as her main conclusions and the remaining challenges. The document includes a list of reports made
by the Special Rapporteur. For information about the role of the Special Rapporteur in connection with
violence against women, its causes and its consequences, see Merino-Sancho 2012: 71 ff.
32 Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, 15 January 2008 (A/HRC/7/3). Available at: http://daccess-dds-ny.un.org/ (last
visited January 2015). The interpretation of gender violence given at this time by the Committee against
Torture was also of fundamental importance: General Comment No. 2: Implementation of article 2 by
States parties, 24 January 2008 (CAT/C/GC/2). Available at: http://docstore.ohchr.org/ (last visited
January 2015).
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http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/439/45/PDF/N1143945.pdf?OpenElement
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/101/61/PDF/G0810161.pdf?OpenElement
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhskvE%2bTuw1mw%2fKU18dCyrYrZhDDP8yaSRi%2fv43pYTgmQ5n7dAGFdDalfzYTJnWNYOX%2b38nJabk89mhJQGxlmctn4%3d
THE ROLE OF SOCIAL MOVEMENTS IN THE RECOGNITION OF GENDER VIOLENCE AS A VIOLATION OF
HUMAN RIGHTS: FROM LEGAL REFORM TO THE LANGUAGE OF RIGHTS
torture as well as by victims of rape. Another parallel between privately battering women
and torture, which refers back to the element of powerlessness, is the intention to keep the
victim in a permanent state of fear based on unpredictable violence by seeking to reduce the
person to submission and destroy his/her capacity for resistance and autonomy with the
ultimate aim of achieving total control.
In fact, this idea of considering violence against women as a form of torture had
already been put forward in academic studies linked to legal activism against gender
violence (Copelon 1994) and also by the Special Rapporteur in her report of 1996:
The argument that domestic violence should be understood and treated as a form of torture
and, when less severe, ill-treatment, is one that deserves consideration by the rapporteurs and
treaty bodies that investigate these violations together perhaps with appropriate NGO experts
and jurists33.
It can be seen that the extension of the recognition of violence against women for
reasons of gender has involved not only those organisations specifically concerned with
the protection of women’s rights. Little by little, it has also extended on an international
level to those organs of the United Nations specifically concerned with the protection of
human rights (Meyersfield, 2012: 58-79). With respect to the full recognition of gender
violence as a violation of rights, especially noteworthy is the General Comment No. 28
of the Human Rights Committee which also links gender violence with torture and
abuse as set out in article 7 of the International Covenant on Civil and Political Rights
and which puts an obligation on states to provide “information on national laws and
practice with regard to domestic and other types of violence against women”34.
The process of recognising gender violence as a violation of rights is also apparent
in the actions of regional human rights protection organisations. Regional organisations
have recognised violence against women as a violation of the human rights of women
and have demanded that states guarantee these rights35.
As regards the Council of Europe, especially significant is the adoption of the
Council of Europe Convention on preventing and combating violence against women
and domestic violence (Istanbul, 11/05/2011). Article 3 makes it clear that under the
terms of the convention violence against women is a violation of human rights and a
form of discrimination against women, which must be seen from the gender perspective:
33 Radhika Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes and
consequences, submitted in accordance with the Commission on Human Rights resolution 1995/85.
(E/CN.4/1996/53, Fifty-second session), paragraph 50. Available at: http://daccess-dds-ny.un.org/ (last
visited January 2015)
34 Human Rights Committee, General Comment No. 28 Article 3 (The equality of rights between men and
women), 29/03/2000 (CCPR/C/21/Rev.1/Add.10), pfo. 11.
35 Vid.Meyersfield 2012: 79-91. For a broader perspective focusing on legal discrimination, progress to
date and the gap existing between the letter of regional mechanisms and actual practice, see Fareda
Banda, Project on a Mechanism to Address Laws that Discriminate Against Women, Office of the High
Commissioner for Human Rights/Women’s Rights and Gender Unit, 2008: 23 ff.
[http://www.ohchr.org/Documents/Publications/laws_that_discriminate_against_women.pdf, last visited
May 2012]
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MANUEL CALVO GARCÍA
“violence against women” is understood as a violation of human rights and a form of
discrimination against women and shall mean all acts of gender‐ based violence that result in, or
are likely to result in, physical, sexual, psychological or economic harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in
public or in private life;
In other regional spheres various instruments have been adopted aimed at defining
domestic and gender violence as human rights violations. The most relevant include the
Inter-American Convention on the Prevention, Punishment and Eradication of Violence
Against Women, known as the “Convention of Belém do Pará” as it was adopted in this
Brazilian city in 1994, and The Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, known as the “Maputo Protocol”, both of
which guarantee the rights of women together with the protection of women against all
forms of violence including gender violence.
The Convention of Belém do Pará states in article 3 that “every woman has the
right to a life free of violence, both in the public and in the private sphere” and
establishes an obligation on states to guarantee this right. Consequently, both the Inter-
American Commission on Human Rights and the Inter-American Court of Human
Rights have acted to guarantee this right and other related rights (articles 4 and 5).
Especially important is the decision of the Inter-American Commission on Human
Rights in the case of Maria da Penha given on 16 April 2001 (Report nº 54/01, Case
12.051). This decision condemned the state of Brazil in the application of the
Convention of Belém do Pará for not having intervened adequately in order to prevent
and respond to the abuse of this woman. This decision obliged Brazil to enact a law
against gender violence, the Ley Maria da Penha en defensa de los derechos de la
mujer (Maria da Penha Law in defence of women’s rights)36.
The other very relevant decision is the ruling of the Inter-American Court of
Human Rights of 16 November 2009 in the case González y otras Vs. México (“Campo
Algodonero”). This ruling concluded that the state had failed to comply with its duty to
investigate – and thus its duty to guarantee– the rights enshrined in various articles of
the American Convention on Human Rights and the Convention of Belém do Pará. The
court also ruled that in this case the violence against the woman represented a form of
discrimination. The state of Mexico was found guilty of human rights violations.
Turning now to the African human rights system, on 11 July 2003 The Protocol to
the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa or
the Maputo Protocol was adopted as an annexe to the Charter of 1986, specifically
orientated to the recognition and protection of women’s rights. This protocol came into
force in 2005 and represents one of the bases for the recognition of the right of women
to a life free of violence37. After defining the concept of violence against women from a
36 Law nº 11.340, 7 August 2006. See Spieler 2011: 137 ff.
37 Meyersfield (2012: 90-91) has emphasized the importance of this text for the recognition of gender
violence as a violation of rights, while pointing out that its implementation and effectiveness is another
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THE ROLE OF SOCIAL MOVEMENTS IN THE RECOGNITION OF GENDER VIOLENCE AS A VIOLATION OF
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gender perspective (article 1) and determining the obligation of states to prevent
discrimination against women (article 2) and to ensure their dignity (article 3), it
establishes in article 4.2 that:
States Parties shall take appropriate and effective measures to: a) enact and enforce laws to prohibit
all forms of violence against women including unwanted or forced sex whether the violence takes
place in private or public; b) adopt such other legislative, administrative, social and economic
measures as may be necessary to ensure the prevention, punishment and eradication of all forms of
violence against women; c) identify the causes and consequences of violence against women and
take appropriate measures to prevent and eliminate such violence; d) actively promote peace
education through curricula and social communication in order to eradicate elements in traditional
and cultural beliefs, practices and stereotypes which legitimize and exacerbate the persistence and
tolerance of violence against women; e) punish the perpetrators of violence against women and
implement programmes for the rehabilitation of women victims; f) establish mechanisms and
accessible services for effective information, rehabilitation and reparation for victims of violence
against women; …
This is a complete and categorical definition which speaks for itself, recognizing
that gender violence is a violation of human rights and requiring the intervention of the
public authorities to guarantee such rights in the private as well as the public sphere.
It is not only in the United Nations system but also in the regional systems of
human rights where progress has been made in the recognition of the right of women to
a life without violence, defining gender violence as a violation of rights and demanding
the intervention of states and international organisations to protect and guarantee such
rights. The struggle by women during decades has achieved first, the recognition of
women’s rights; second, bringing the reality of gender violence into the open together
with the violation of rights inherent in its various forms; and, third, the recognition of
the specific right of women to a life free of any kind of gender-based violence.
International law and social and academic discourse recognise that gender violence is
not only an attack on the rights of women, but is also a violation of the right of women
to a life free of violence.
It has been a long process, but today it is at last unarguable that gender violence is
a violation of human rights. At a local level, this process has been interrelated with
advances in legal reforms and has furthered punitive strategies to the extent that gender
violence has become regarded as a universal problem. This was pointed out by Jane R.
Chapman (1990: 60) in her justification of the need to find space for the language of
rights in the fight to end violence against women. Gender violence is certainly a crime,
but it is much more than an offence. Therefore, if this social scourge is to be eradicated,
it is essential to speak of it in the language of rights. Dealing with the problem in terms
of human rights is especially productive because it provides a broader perspective
without ignoring the advances implicit in criminal and other legal reforms.
III. RIGHTS AGAINST GENDER-BASED VIOLENCE
question.
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The struggle for the recognition of gender-based violence as a violation of
women’s rights is of fundamental importance when attempting to extend the limits of a
discourse based on the protection of civil rights and the politics of women. The
recognition of the right to a life free of gender-motivated violence together with other
rights pertaining specifically to women, in particular reproductive rights, take us much
further than abstract ideas of equal treatment. They lead towards the recognition of
rights vested in women in the broadest possible sense of the term and open the way to
an acceptance of full equality without exceptions.
The developments examined in the previous section indisputably show that the
right to a life free of gender violence has full recognition within the international system
of human rights38. This recognition has important legal consequences. This point is
made in a report drafted by a group of informed experts as follows:
There are important consequences that flow from categorizing violence against women as a
matter of human rights. Recognizing violence against women as a violation of human rights
clarifies the binding obligations on States to prevent, eradicate and punish such violence and
their accountability if they fail to comply with these obligations. These obligations arise from the
duty of States to take steps to respect, protect, promote and fulfil human rights. Claims on the
State to take all appropriate measures to respond to violence against women thus move from the
realm of discretion and become legal entitlements. The human rights framework provides access
to a number of tools and mechanisms that have been developed to hold States accountable at the
international and regional level. These include the human rights treaty bodies and international
criminal tribunals, as well as the African, European and inter-American human rights systems 39.
The recognition at an international level of the right of women to a life free of
gender violence thus has significant legal implications in addition to political and social
consequences. It puts an obligation on states to ensure this right is effectively exercised
by implementing the appropriate legislative, administrative and other necessary
measures. The right to a life free of gender-motivated violence can be exercised without
any limitations or excuses based on arguments relating to the agency or the private
sphere in which violations of this right are committed. States have responsibilities in the
eradication of gender violence to guarantee women’s rights. As a result, these rights are
subject to the scrutiny of various human rights treaty bodies which monitor them from
different perspectives (the Committee on the Elimination of Discrimination against
Women, the Human Rights Committee, the Committee against Torture and the
Committee on the Rights of the Child) and, where applicable, the object of
communication by virtue of the corresponding Optional Protocol. They are also subject
to examination and information-gathering under the terms of the mandates that protect
such rights directly or indirectly, in particular by the Special Rapporteur on violence
38 After an exhaustive analysis, Bonita Meyersfield (2012: 106-107) concludes that from a technical point
of view it is indisputable that the right can be exercised from the perspective of international law.
39 UN - ADVANCEMENT OF WOMEN, In-depth study on all forms of violence against women. Report
of the Secretary-General, 2006 (A/61/122/Add.1), paragraph 39. This study included contributions from a
wide range of experts and is an important reference point in the establishment of the right of women to a
life free from gender violence.
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against women, its causes and its consequences, and the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment. Similarly, in the
regional sphere, the Council of Europe Convention on preventing and combating
violence against women and domestic violence establishes monitoring and control
measures by means of a Group of Experts and the Committee on action against violence
against women and domestic violence40.
However, the right of women to a life free from gender-based violence cannot be
fully realised without transferring the implementation of this right from the international
to the local level. This message needs to be articulated in the discourse on rights at the
local level where the appropriate actions also need to be taken to implement this right.
Including this right with other fundamental rights protected in state constitutions such as
the rights to liberty, equality, life, security and non-discrimination would establish
guarantees of the protection and enforceability of this right at a local level.
As suggested above, there is still a long way to go before women’s rights are
fully and effectively achieved, especially the right to a life free from gender violence.
The delay in the recognition of these rights says a great deal about the context and the
prevailing ideology which for decades has put so many obstacles in the path to such
recognition.
The struggle for the right of women to a life free from gender violence is marked
by the need to address impediments to the main features of this right. In the first place,
its recognition involves transformations and developments that must be considered as a
“revolutionary and evolutionary process” (Thomas and Beasley 1995: 1147) in which
the feminist movement and the involvement of women’s organisations are
fundamentally important, which could thus be characterised as a “bottom up” process
both at the international and national levels. Secondly, the inclusion of the language of
rights in the struggle against gender violence –admittedly a complex and dialectical
process –initially occurs at an international level and thus requires putting this
development into practice at a local level, based on the consideration of gender violence
as a violation of rights.
The recognition of the right of women to a life free from gender violence has
proved to be especially relevant in highlighting the influence of social movements in the
recognition of rights and the actions of women’s organisations in making such rights
effective in practice. The legislative intervention against gender violence advocated
within the framework of the legal reformism was at all times influenced by the actions
of the feminist movement and women’s organisations. Subsequently, in the last decades
of the 20th century, the international human rights movement and national women’s
movements promoted the recognition of the right of women to a life free from gender
violence and the consequent classification of gender violence as a human rights
violation. In both cases, as shown in the previous section, the driving force behind
women’s human rights and their specific right to a life free from violence can be
40 This Convention came into force on 1/8/2014, after ratification by 10 states.
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regarded as a “bottom up” process41.
The history of human rights shows the importance of enshrining these rights in
legislation and in local practice to ensure their implementation. In other words, it is
necessary to identify gender violence as a human rights issue in all contexts and at all
levels (Thomas and Beasley 1995). The laws for eradicating gender violence should
combine this action with the implementation of women’s rights, incorporating
developments in the international human rights system insofar as it relates to women’s
rights and also the recognition of fundamental rights such as those of liberty, equality,
life, security and non-discrimination found in democratic constitutions42. The other step,
also fundamental for achieving the desired objectives, is the incorporation of the
language of rights in the practice and actions of social movements. This implies first
introducing the language of rights in practice. Perhaps the fundamental step is
introducing the language and the defence of rights in actions against gender violence in
the courts and in those institutions responsible for prevention and the protection of
victims. It is essential that the arguments based on the discourse of human rights and the
advances in international human rights law should appear in judicial decisions.
However, this obviously will not occur spontaneously43. This would require the active
intervention of the women’s movement and of human rights movements in general.
Here it is important for women’s organisations to include arguments and resources in
their discourse and strategies based on those of international and national mechanisms
for the defence of human rights, and at the same time for women to realise that their
struggle is not a personal one to be faced in isolation, but that their actions involve the
full realisation of human rights. This in turn means that all people involved
professionally in actions against gender violence and the protection of its victims should
be conscious of this perspective (Choudhry and Herring 2006; Morgaine 2006).
Perhaps the first question is how to help society and victims to treat the
phenomenon of gender violence as a question of rights. It is clear that this is the first
step towards reaching the point where all the actors involved in the fight against gender
violence accept the language of rights and the possibilities that this perspective offers.
Sally E. Merry has shown in several empirical research studies the way in which women
victims of gender violence have come to realise that the aggression they suffer
represents a violation of their rights 44. She has made it clear that rights consciousness
41 Merry et al. (2010) use this terminology, paraphrasing Santos and Rodríguez-Garavito, eds (2005).
42 This was done in Spain with the “Ley Orgánica 1/2004” of 28 December 2004 on “Medidas de
Protección Integral contra la Violencia de Género” (Comprehensive Protection Measures against
Gender-based Violence). From many points of view this legislative development is insufficient because
the language of rights in this law does not recognize a “specific” right of women to a life free from gender
violence. Nevertheless, it is an important step forward given that it clearly does use the language of rights
in addressing gender violence.
43 For example, when addressing the constitutionality of the above-mentioned law, the Spanish
Constitutional Court in its decision 59/2008 not only failed to directly recognize the right of women to a
life free from gender-based violence, but paradoxically it also avoided using the language of rights in
relation to the protection of victims and the eradication of gender violence.
44 Sally Engle Merry has conducted various empirical research studies demonstrating this process,
arriving at conclusions that cannot be ignored. One of the first presentations of this research can be seen
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does not precede their implementation. In fact, her investigations suggest that
“implementation is fundamental to establishing human rights consciousness” (Merry
2003: 381). The adoption of the perspective of rights depends on a subjective
construction that must be based on individual experiences lived in the social
environment. Thus the implementation of rights and the existence of social movements
involved with the human rights of women in practice, particularly their right to a life
free from gender violence, is decisive (Merry 2003).
The intervention of women’s movements based on the resource of human rights
is fundamental for putting the individual experiences of gender violence victims within
a wider framework from which the abuse can be considered as a social problem. This
can lead to a collective identification which favours the development of an individual
consciousness that must overcome the idea that gender violence is confined to a private
and individual sphere (Schneider 1986: 611 ff.). Only this change motivated by the
internalizing of the right to a life free from gender violence will allow women to go
beyond moral judgements anchored in the breeding ground of a patriarchal society and
the demands for protection from violence and its eradication to be met not as a question
of mercy, but as a question of justice (Schneider 1986: 615, following Gilligan 1993:
128 ff.).
In conclusion, the implementation of women’s rights in general and the right to a
life free from gender-based violence in particular at a local level is fundamental. To
achieve this, the rights must be passed into legislation and local practice at an
institutional level in addition to the intervention of the women’s movement and
organisations. The incorporation of the language of rights can contribute to
strengthening the actions of the women’s movement against gender violence. Including
the discourse of rights within the activism of social movements has been shown to be a
positive element in achieving their objectives45. This has also been the case in the fight
of the women’s movement for the recognition of full equality, for their reproductive
rights and for the eradication of gender violence. The impetus to achieving rights from
the “bottom up” approach has an especially important transforming potential. However,
as the experiences of the feminist movement in the defence of women’s rights have
shown, lowering the guard in the fight for women’s rights could lead to the idea that
once rights have been internationally recognised and implemented in national
legislation, the obligations and responsibilities for the exercise of these rights lies with
the state, an idea which could disarm the women’s movement in its efforts for ensuring
the effective realisation of such rights (Schneider 1986: 630). A more complex analysis
of the mechanisms of social power and the design, on the part of the women’s
movement and organisations, of more wide-reaching actions of social intervention
complementary to state intervention may perhaps result in a more productive strategy in
terms of social change. To see legal change reflected in social transformations, it is
in Merry (2003: 343-381). She later considered the question within a much broader cultural perspective
and provided comparisons with other research studies in Merry (2005: 179 ff.)
45 Obviously there are opinions to the contrary and, in general, about the limitations imposed by
enclosing the feminist struggle in the discourse of rights (Elson 2006: 107 ff.; Nash 2002)
The Age of Human Rights Journal, 6 (June 2016) pp. 60-82 ISSN: 2340-9592 DOI: 10.17561/tahrj.v0i6.2930
78
MANUEL CALVO GARCÍA
important for civil society to act in order to ensure the effectiveness of legally
recognised rights and to take action which complements public policies.
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