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

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. (Less)