Due diligence och staters positiva skyldigheter gällande sexuellt våld : En komparativ rättsanalys av det Europeiska samt det Inter-Amerikanska systemet för mänskliga rättigheter
Sammanfattning: This paper considers the legal understanding of due diligence and states’ positive obligations regarding sexual violence. It uses legal dogmatic and legal comparative methods to analyse the European and the Inter-American human rights systems. It also uses a feminist perspective, with a focus on women’s vulnerability. The paper examines the Istanbul Convention and the Convention of Belém do Pará, in addition to case law from the European Court of Human Rights, the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. In its examination, it illustrates and clarifies the responsibility of states to combat sexual violence and thus violations of women’s human rights. The paper finds that failure by states to act in accordance with due diligence in cases of sexual violence by private actors has been recognized as both torture and infringement of sexual autonomy. This is of great significance in trying to bridge the dichotomy of the public and private spheres, which has characterized human rights. For this reason, the paper concludes that the Convention of Belém do Pará should contain a consensus regulation in the same way that the Istanbul Convention does. This could enable increased accountability regarding due diligence, in order to respond better to the fundamental values of human rights. Moreover, it concludes that the Istanbul Convention should be subject to the jurisdiction of the European Court of Human Rights, in the same way that Belém do Pará is in the Inter-American system. This would strengthen the European system’s accountability in relation to due diligence and sexual violence in many ways. Finally, based on a feminist perspective, the paper argues that in order to effectively combat sexual violence through preventive measures, private actors should be held directly responsible. Treaties relating to due diligence responsibilities should therefore be open for ratification by more actors than just states.
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