INTRODUCTION

This chapter will focus on two key human rights documents as examples of how human rights can be used to combat domestic abuse: the European Convention on Human Rights (ECHR) and the Istanbul Convention. The ECHR is an example of a general human rights convention including rights one would typically find in a general statement of human rights. It is not particularly focused on domestic abuse and is based on a more traditional restrictive rights model. However, this chapter will explore how the courts have found ways of using it to combat domestic abuse. The Istanbul Convention, by contrast, is specifically designed to address violence against women and domestic abuse. The strengths and challenges of the Istanbul Convention will also be explored.

One of the aims of this book is to highlight how human rights provide a powerful tool to require effective intervention in domestic abuse cases. Human rights in the modern legal world are not simply tools to prevent states from acting in a way which infringes human rights, but they require the state to put in place an effective response. The significance of this lies not simply in the provision of a legal tool, but in how they reflect an understanding of what domestic abuse is: its impact on individual victims, its impact on society, and its true meaning (these points were explored in Chapter 2). The historic failure of human rights to respond to domestic abuse revealed a failure to appreciate the significance of domestic abuse. The discussion here will also seek to demonstrate how human rights provide tools to deal with tricky issues that can arise in terms of developing a legal response to domestic abuse.

In his concurring opinion in Valiulienė v Lithuania, Judge Pinto de Albuquerque suggested there were three obstacles to finding an effective response to domestic abuse within a human rights framework, all of which he thought it important to overcome. The first was the respect for privacy. As mentioned in Chapter 1, the argument that abuse within the home was private meant that the conduct was seen as falling outside the scope of human rights and, even if it did not, the importance of the right of privacy gave a strong reason for not interfering in domestic abuse cases.