Health, Human Rights, and Violence Against Women and Girls: Broadly Redefining Affirmative State Duties after Opuz v. Turkey
Hastings International and Comparative Law Review, Forthcoming
27 Pages Posted: 3 Aug 2010
Date Written: August 3, 2010
This paper was initially presented at the Hastings International & Comparative Law Review symposium “Heath as a Human Right: The Global Option.” The symposium was held in memory of Professor Virginia Leary, a leader in international law. Professor Hanna takes this theme and applies it to global problem of violence against women and girls and makes two assertions. First, while there has been tremendous progress in our understanding of how male violence against women and girls undermines gender equality and impacts their right to autonomy and full citizenship, the most fundamental and basic consequence of such violence – physical and mental injury – is often overlooked. Both legal scholarship and arguments justifying affirmative state intervention to end privately-imposed violence often fail to address these injuries. Yet, gender-based violence is one of the most widespread public health problems in the world. Therefore, the right to health ought to be included within legal arguments justifying affirmative state duties to intervene into private relationships.
Second, while few would question that states have an affirmative duty to implement policies geared at ending male violence against females, many would question whether such policies should include mandated interventions that are contrary to a woman’s choice to preference her privacy over her health or safety. It is here where two human rights – the right to health and the right to family autonomy and privacy - seemingly conflict. Of course, this conflict is hardly one of first impression. Advocates for abused women have been debating where this line ought to be drawn for nearly two decades just as health advocates have struggled with the question of when mandatory public health interventions should yield to privacy concerns.
To rethink this conflict, the author examines Opuz v. Turkey, recently decided by the European Court of Human Rights, which articulates a clear and simple standard to guide state actors in deciding whether mandatory interventions into specific relationships promote or compromise human rights. The case specifically articulates how the preservation of health requires positive state intervention, even if it arguably comprises another human rights principle. This articulation shows the Court’s willingness to err on the side of ensuring physical and mental integrity rather than the more conceptually amorphous concept of privacy. She urges policy makers in the United States and beyond to use Opuz as a guide in meeting their affirmative duties to end gendered violence.
Keywords: Violence Against Women, Health, International Human Rights, Gender, Domestic Violence, Affirmative State Duties, Privacy
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