On November 18, 2015, the Inter-American Commission on Human Rights (IACHR) published a new report analyzing regional human rights standards on gender equality and women’s rights, as well as their implementation by domestic judiciaries. [IACHR Press Release] The publication, Legal Standards: Gender Equality and Women’s Rights, updates a 2011 publication with references to norms and interpretations developed through 2014. Its release coincides with the twentieth anniversary of the adoption of the Convention of Belém do Pará, the regional treaty on violence against women, and is the part of the IACHR’s efforts to promote the development and application of gender equality and women’srights standards in Americas. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015). Last month, the IACHR released a number of other thematic reports, including a second publication related to women’s human rights, entitled Access to Information, Violence against Women, and the Administration of Justice.
Containing references to relevant IACHR’s merits decisions and thematic and country reports, judgments of the Inter-American Court of Human Rights (IACtHR), and provisions of regional instruments such as the American Convention on Human Rights, American Declaration of the Rights and Duties of Man, and Convention of Belém do Pará, the report is a comprehensive examination of the standards of the Inter-American human rights system. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), para. 10.
The Commission welcomed reforms concerning gender equality and women’s rights in Member States and called on them to continue their efforts to improve the situation. However, it also stressed that in spite of these efforts, there are still numerous human rights problems women experience in the Americas, including various forms of violence against women, and discrimination across a wide range of rights and spheres. See id. at paras. 2-15.
The Commission also emphasized its concern regarding impunity for human rights violations in the region, calling the failure to prevent and punish violations of women’s fundamental rights a significant challenge for rule of law requiring immediate action on the part of States. See id. at para. 1. It highlighted several recent cases where the Commission and Court found States responsible for impunity and failure to act with due diligence to address abuses. See id. at paras. 11-15, 25 (citing IACHR, Report No. 51/13, Case 12.551, Paloma Angelica Escobar Ledezma (Mexico), 12 July 2013; IACHR, Report No. 53/13, Case 12.777, Claudina Isabel Velasquez Paiz (Guatemala), 4 November 2013; IACHR, Report No. 67/11, Case 11.157, Gladys Carol Espinoza Gonzales (Peru), 31 March 2011).
The report was drafted in part on the basis of responses to a questionnaire the IACHR addressed to Member States of the Organization of American States (OAS), as well as to civil society organizations, academic institutions, international organizations and experts. The IACHR received responses from Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Guyana, Mexico, Panama, Paraguay, Peru the United States, Uruguay, and Venezuela, as well as from a number of governmental agencies and non-governmental organizations, regarding application of the case law of the Inter-American bodies at the domestic level. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), para. 6.
Violence against Women
In this section, the IACHR stressed significant development of legal protections related to violence against women observed in the region during last two decades. It connected these advances with States’ ratification of the Convention of Belem do Para, as well as the influence of key international standards including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the CEDAW Committee’s General Recommendation 19. See id. at para. 16.
Violence, Discrimination and the Duty to Act with Due Diligence
With regard to violence against women, the Commission highlighted the case of Maria da Penha Maia Fernandes, in which it confirmed violations of the Convention of Belém Do Pará for the first time, with regard to the State’s failure to act with the due diligence to prevent, punish and eradicate domestic violence. See IACHR, Report No. 54/01, Case 12/051, Maria da Penha Maia Fernandes (Brazil), 16 April 2001. The Commission stressed that such patterns of tolerance by the State, as well as judicial inefficiency, in domestic violence cases, create an environment that facilitates domestic violence. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), at paras. 23-24.
Sexual Violence and Access to Justice
The Commission discussed two cases in which it developed the standards concerning sexual violence and access to justice. See id. at paras. 25, 29 (citing IACHR, Report No. 5/96, Case 10.970, Raquel Martin de Mejia (Peru), 1 March 1996; IACHR, Report No. 53/01, Case 11.565, Ana, Beatriz and Celia Gonzalez (Mexico), 4 April 2001). In these cases, the Commission addressed the concept of sexual violence as torture, defined in the Inter-American Convention to Prevent and Punish Torture as: 1) “an intentional act through which physical and mental pain and suffering is inflicted on a person”; 2) “committed with a purpose,” and 3) “by a public official or by a private person acting at the instigation of the former.”. The Commission found that the rape of these women by members of the military constituted torture and that the responsible States had also failed to ensure their access to judicial protection, which in such cases required the State to ensure an adequate and impartial investigation of the assaults. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), paras. 25-31.
Discrimination against Women
The Commission also noted the regional standards related to discrimination against women. The report mentions that much of the analysis by the Commission and the Court on this issue has been focused on the principle of equality and non-discrimination enshrined in articles 1.1 and 24 of the American Convention, Article II of the American Declaration, and various articles of the Convention of Belém do Pará and CEDAW. See id. at paras. 130-31.
Sex as a Prohibited Factor of Discrimination
With regard to gender based discrimination, the Commission noted its decision in the case of Maria Eugenia Morales de Sierra. See IACHR, Report No. 4/01, Case 11.625, Maria Eugenia Morales de Sierra (Guatemala), 19 January 2001. In this case, the Commission examined that the Civil Code of Guatemala, which assigned responsibilities and obligations to the husband as income generator and to the woman as wife, mother and housewife. The Commission found this provision discriminatory against woman. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), para. 132.
The Link between Discrimination and Violence against Women
The Commission again referred to the case of Maria Eugenia Morales de Sierra in emphasizing its concern regarding the relationship between discrimination, stereotypes, and violence against women. See IACHR, Report No. 4/01, Case 11.625, Maria Eugenia Morales de Sierra (Guatemala), 19 January 2001. In a series of subsequent decisions, the Commission again recognized the link between discrimination and violence. See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), para. 133 (citing IACHR, Report No 54/01, Case 12.051, Maria da Penha Maia Fernandes (Brazil), 2008; IACHR, Report No. 114/10, Case 12.626, Jessica Lenahan (Gonzales) et al. (United States), 21 July 2011; and IACHR, Report No. 36/09, Case 12.579, Valentina Rosendo Cantu and others (Mexico), 27 March 2009).
In the case of Jessica Lenahan (Gonzales), the Commission for the first time examined discrimination against women its close link to the problem of violence against women through the protections of the American Declaration. See IACHR, Report No. 114/10, Case 12.626, Jessica Lenahan (Gonzales) et al. (United States), 21 July 2011. In this case the State failed to act with due diligence to protect Jessica Lenahan and her daughters against domestic violence committed by her ex-husband. In its merits report, the Commission developed the following standards related to discrimination against women under the American Declaration:
a) the States are obligated under the American Declaration to give legal effect to the duties contained under Article II and its obligation not to discriminate; b) that the obligations under Article II of the American Declaration include the prevention and the eradication of violence against women as a key component of the duty of the State to eliminate all forms of direct and indirect discrimination; c) that in certain circumstances the State can incur responsibility for failing to protect women from domestic violence acts perpetrated by private actors; and d) that when a State does not comply with its obligation to protect women from domestic violence according to what has been established under Article II of the American Declaration, this can also give rise in certain cases to violations of the right to life under Article I of the American Declaration, and the duty to grant a special protection contained in Article VII of the same instrument.
See IACHR, Legal Standards: Gender Equality and Women’s Rights (2015), para. 134.
The Commission concludes the report by calling on the Member States to continue the application of the standards of Inter-American human rights system. It stresses that the gender equality and women’s rights standards developed by the Commission and Court are effective if the Member States apply them at the domestic level, particularly through national judicial systems. The Commission also highlights the significant role of civil society organizations and networks, regional and international agencies, the academic sector and the media in achieving gender equality and protection of women from discrimination and violence in the Americas. See id. at paras. 193-94.
Finally, the report recognizes the Member States’ efforts to improve gender equality and women’s rights through the adoption of national legislation, public policies, and programs. See id. at para. 196. According to the report:
- Bolivia reached a friendly settlement in the case of MZ, which was brought before the Commission, and as a result human rights and gender related courses had been included in the programs of the Judicial Institute. Moreover, the State convened public conferences for the judiciary on access to justice for women.
- Brazil held a series of training courses on the Maria da Penha Law for the National Judicial Council, the Judicial Schools, and the National School for the Training and Continuing Education of Judges, in addition to a national judicial forum on domestic and family violence against women and other activities for related authorities.
- Colombia had adopted constitutional and other legislative provisions to advance women’s equal representation and participation in government.
- The judiciary of the State of Costa Rica adopted policies on gender equality and non-discrimination. It is also planning training courses for judges on domestic violence and related human rights standards.
- The State of Chile created the Center for Control, Evaluation and Resolution of Precautionary Measures for the Family Courts in Santiago in 2007 and its goal is to protect domestic violence victims.
- Guatemala adopted three specific statutes addressing the issue of violence against women. The statutes are the Law to Prevent, Punish and Eradicate Family Violence, the Law against Femicide and Forms of Violence against Women and the Law against Sexual Violence, Exploitation, and Human Trafficking.
The Commission found these actions to be a step forward for Member States and urged them to continue and increase their efforts to improve gender equality and women’s rights in the region.