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Due Diligence versus Positive Obligations: Critical Reflections on the Council of Europe Convention on Violence against Women

Stoyanova, Vladislava LU (2020)
Abstract
Article 5 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) enshrines the standard of due diligence to frame states’ obligations. In the existing literature in the area of violence against women, the standard of due diligence has been uncritically endorsed; the reason being that it has played a crucial role in the recognition of the violence as a human rights violation. This chapter offers a different and more critical perspective. It is an in-debt inquiry as to the meaning of the due diligence standard, its limits and any reasons to be cautious about it. It asks the question whether there any peculiarities as to how it has been framed in the Istanbul... (More)
Article 5 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) enshrines the standard of due diligence to frame states’ obligations. In the existing literature in the area of violence against women, the standard of due diligence has been uncritically endorsed; the reason being that it has played a crucial role in the recognition of the violence as a human rights violation. This chapter offers a different and more critical perspective. It is an in-debt inquiry as to the meaning of the due diligence standard, its limits and any reasons to be cautious about it. It asks the question whether there any peculiarities as to how it has been framed in the Istanbul Convention, which could be a reason for concern. I clarify that in general the European Court of Human Rights does not use the concept of due diligence; rather, violence against women can trigger states’ positive human rights obligations. I show that not all positive obligations are obligations of due diligence. Better sensitivity as to the divergences and their implications is called for. Such a sensitivity is absent in the existing literature, where currently a confusion reigns. I argue that it is doubtful whether the reference to due diligence adds any concreteness; rather, this reference obscures. This chapter is an attempt to disentangle and better understand the relationship between due diligence and positive obligations in human rights law. A meaningful effort to juxtapose the two frameworks (due diligence versus positive obligations) requires a better understanding of each one of them, which is also offered. The main argument is that it is important to be sensitive of the nuances and differences between the two frameworks. A general references to the due diligence standard, as can be found in Article 5 of the Istanbul Convention, poses the danger of ignoring these nuances. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
Human rights, Public international law, Positive obligations, Violence against women, Due diligence, Mänskliga rättigheter, Folkrätt
host publication
International Law and Violence Against Women : Europe and the Istanbul Convention - Europe and the Istanbul Convention
editor
Niemi, Johanna ; Peroni, Lourdes and Stoyanova, Vladislava
publisher
Routledge
ISBN
9780429289736
9780367257668
project
Positive Obligations under the European Convention on Human Rights: More Predictability through Better Legal Reasoning
Violence against Women: Transformations and Challenges after the Istanbul Convention
language
English
LU publication?
yes
id
3d525a72-a5c0-4aa4-a532-bc37a53e1f70
alternative location
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3384607
date added to LUP
2019-06-27 03:08:37
date last changed
2020-04-02 14:23:03
@inbook{3d525a72-a5c0-4aa4-a532-bc37a53e1f70,
  abstract     = {Article 5 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) enshrines the standard of due diligence to frame states’ obligations. In the existing literature in the area of violence against women, the standard of due diligence has been uncritically endorsed; the reason being that it has played a crucial role in the recognition of the violence as a human rights violation. This chapter offers a different and more critical perspective. It is an in-debt inquiry as to the meaning of the due diligence standard, its limits and any reasons to be cautious about it. It asks the question whether there any peculiarities as to how it has been framed in the Istanbul Convention, which could be a reason for concern. I clarify that in general the European Court of Human Rights does not use the concept of due diligence; rather, violence against women can trigger states’ positive human rights obligations. I show that not all positive obligations are obligations of due diligence. Better sensitivity as to the divergences and their implications is called for. Such a sensitivity is absent in the existing literature, where currently a confusion reigns. I argue that it is doubtful whether the reference to due diligence adds any concreteness; rather, this reference obscures. This chapter is an attempt to disentangle and better understand the relationship between due diligence and positive obligations in human rights law. A meaningful effort to juxtapose the two frameworks (due diligence versus positive obligations) requires a better understanding of each one of them, which is also offered. The main argument is that it is important to be sensitive of the nuances and differences between the two frameworks. A general references to the due diligence standard, as can be found in Article 5 of the Istanbul Convention, poses the danger of ignoring these nuances.},
  author       = {Stoyanova, Vladislava},
  booktitle    = {International Law and Violence Against Women : Europe and the Istanbul Convention},
  editor       = {Niemi, Johanna and Peroni, Lourdes and Stoyanova, Vladislava},
  isbn         = {9780429289736},
  language     = {eng},
  publisher    = {Routledge},
  title        = {Due Diligence versus Positive Obligations: Critical Reflections on the Council of Europe Convention on Violence against Women},
  url          = {https://lup.lub.lu.se/search/ws/files/77245891/Due_Diligence_versus_Positive_Obligations_Critical_Reflections_on_the_Council_of_Europe_Convention_on_Violence_against_Women.pdf},
  year         = {2020},
}