Conference Contribution Details
Mandatory Fields
Yahyaoui Krivenko,Ekaterina
Workshop on Soft Law and Human Rights
Undecidability of the Soft Law: On the Thresholds of the CEDAW
Danish Institute for Human Rights, Copenhagen, Denmark
Conference Paper
Optional Fields
The contribution explores the dynamics of the soft and hard law within the context of the CEDAW. Focusing on the issue of the violence against women and on the particular approach chosen by the CEDAW committee to address this issue, the contribution will explore the threshold separating non-law, soft law and hard law.   The CEDAW does not contain any provision addressing violence against women despite lobbying by some NGOs during the drafting process. Initially, the issue of violence against women is addressed in the CEDAW general recommendation 12 in 1989, general recommendation 19 of 1992 and subsequently in the famous GA Declaration of 20 December 1993 (A/RES/48/104). If we look at the jurisprudence of the CEDAW committee and its concluding observations, the committee addressed the issue of violence against women from the very beginning of its activities despite the apparent lack of an express legal provision allowing it to do so.  Nowadays, despite the absence of any amendments and thus despite the absence of an explicit legal provision, CEDAW is commonly understood and interpreted as integrating a prohibition of violence against women. How this passage from soft law to hard law happened? What tactics and mechanisms used by CEDAW committee and by NGOs allowed for such a smooth and almost invisible sliding of the prohibition of violence against women from soft law to hard law? What lessons about the nature of the soft law can we draw from this experience?   The above questions will be addressed through a careful analysis of the travaux préparatoires, discussions of states’ reports, concluding observations, and decisions of the Committee. Particular attention will be paid to the language used by different actors in furthering their interests. E.g. to what extent did various actors refer to soft law documents and made recourse to the terminology of the soft law? For what purposes? If the terminology of the soft law was not used, what other terms replaced it? What actors preferred what terms and how these choices affected the passage to the hard law? If we have a hard law on the topic today without having an explicit legal provision, how could this potentially affect future approach to the issue? Can this mean that the language of the soft law could re-emerge to allow for states’ political maneuvering? Or perhaps there is at the end no hard law at all? This last question requires a more general overview of regional and global developments in addressing the issue of violence against women. In doing so, I will also draw some more general conclusion on the relationship between CEDAW and other human rights mechanisms and bodies to consider how this overall framework affected the dynamics of soft and hard law on the issue of violence against women.   From a more general point of view this analysis will contribute to a better understanding of the relationship between non-law, soft law and hard law. 
Publication Themes