Concept Note for SAARC Tribunal on GBV

This project deliberates on the establishment and potential advantages and pitfalls of a South Asian Association for Regional Cooperation (SAARC) Tribunal on Gender-Based Violence (GBV). This Tribunal is envisaged to be similar to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) Committee, headquartered at the SAARC Secretariat in Kathmandu, Nepal. 1 The issue of GBV is endemic to the subcontinent with women lacking an effective redressal mechanism. 2 Frequently the jurisdiction of crimes of GBV are lumped together with other jurisdictions like family law and property issues. 3 This lack of a specialized mechanism results in diluted and inefficacious solutions. 4 The Due Diligence Obligation (DDO) to the CEDAW clearly states that states have a duty to prevent, prosecute and punish all forms of violence against women. 5 The SAARC Tribunal on GBV is intended to effectuate India’s compliance obligations under the CEDAW. Arguably India has advanced a Declaration to its CEDAW obligations in respect of safeguarding its Personal Status Laws. 6 How will this impact the issue of GBV under the Mechanism? What will establishing a SAARC Due Diligence Mechanism entail for peace in the region? Arguably the relationship between India and Pakistan is characterized by Hobbesian anarchy and warfare. 7 Does this situation make international law fundamentally incompatible in the region? Can the endemic anarchy not be replaced by a gendered peace? Is it possible to open a new channel of gendered diplomatic communication that supersedes the situation of Hobbesian anarchy? Can we present a cogent case to the SAARC Secretariat and the Government of India to undertake this measure to subvert the situation of terrorism in the subcontinent? The issue of a SAARC Tribunal on GBV is highly topical given that the SAARC entity is yet to perform sustained diplomacy in the field of gender. Its bureau does not have a portfolio exclusively associated with GBV. Also, the SAARC Social Charter talks about discrimination against women, a concept imported from the CEDAW under its Article VI. 8 While the topic of discrimination has been extensively dealt with, the newer concept of GBV is yet to find a place in the SAARC Social Charter. Worldwide governments are heralding a new era of gendered diplomacy. 9 It seems like the SAARC entity should not lag far behind. We need to forge common alliances on the basis of gender to remove the scourge of GBV in the region. One of the major critiques of feminism vis-à-vis public international law is that the DDO to the CEDAW is yet to be promulgated as a formal principle of public international law. 10 It is indeed a travesty that a principle on GBV is yet to find a formal mention under the CEDAW treaty. The proposal for a SAARC Tribunal on GBV envisages the promulgation of an exclusive principle on GBV to compensate for the lack of recognition under the CEDAW.

This idea has been conceived by Shritha Vasudevan.

Footnotes

1 For CEDAW Committee please see: ‘Committee on the Elimination of Discrimination against Women
| OHCHR’ <https://www.ohchr.org/en/treaty-bodies/cedaw> accessed 29 March 2025.
2 Geeta Pandey, ‘Rising Crimes against Indian Women in Five Charts’ (BBC, 13 September 2022)
<https://www.bbc.com/news/world-asia-india-62830634> accessed 29 March 2025.
3 Vandana Peterson, ‘Speeding up Sexual Assault Trials: A Constructive Critique of India’s Fast-Track
Courts.’ (2016) 18 Yale Hum. Rts. & Dev. LJ 59, 71.
4 Singh, Saurabh Kumar and Radhe Shyam Jha, ‘Legal Framework vs. Practical Realities: The
Effectiveness of Fast Track Courts in Achieving Speedy Justice’ (2024) 7 2117, 2124.
5 CEDAW Commmittee, ‘CEDAW General Recommendation No. 19: Violence against Women’
<https://www.refworld.org/legal/resolution/cedaw/1992/en/96542> accessed 7 March 2024; CEDAW
Committee, ‘General Recommendation No. 35 on Gender-Based Violence against Women, Updating
General Recommendation No. 19’ <https://digitallibrary.un.org/record/1305057> accessed 14 October
2024.
6 CEDAW Committee, ‘Declarations, Reservations, Objections and Notifications of Withdrawal of
Reservations Relating to the Convention on the Elimination of All Forms of Discrimination against
Women’ <https://www.un.org/womenwatch/daw/cedaw/reservations.htm> accessed 25 November
2024.

7 For a relevance of Hobbesian to contemporary international affairs please see: Guilio Gallarotti, ‘The
Enduring Importance of Hobbes in the Study of IR’ (2013) 10 E-International Relations <http://www.e-
ir.info/2013/01/10/hobbes-is-still-extremely-relevant-for-the-study-of-ir-especially-the-cosmopolitan-
hobbes/> accessed 26 February 2025.
8 Article VI, South Asian Association for Regional Cooperation (SAARC), Social Charter, 4 January 2004,
available at: https://www.refworld.org/docid/595c933c4.html [accessed 12 November 2024].
9 Karin Aggestam, Annika Bergman Rosamond and Annica Kronsell, ‘Theorising Feminist Foreign
Policy’ (2019) 33 International Relations 23; Columba Achilleos-Sarll, ‘Reconceptualising Foreign
Policy as Gendered, Sexualised and Racialised: Towards a Postcolonial Feminist Foreign Policy
(Analysis)’ (2018) 19 Journal of International Women’s Studies 34.
10 Ronagh JA McQuigg, ‘The CEDAW Committee and Gender-Based Violence against Women Recent
Developments’ (2017) 6 International Human Rights Law Review 263, 273.

11 Dubravka Šimonović, ‘Global and Regional Standards on Violence against Women: The Evolution
and Synergy of the CEDAW and Istanbul Conventions’ (2014) 36 Human Rights Quarterly 590, 605;
Andreea Maria Serbu, ‘From the CEDAW to the Istanbul Convention: Effectiveness in Tackling
Violence Against Women’ 36 <https://unitesi.unive.it/handle/20.500.14247/20862> accessed 30
March 2025; Desiree Bernard, ‘The Synergy of” Rights” Conventions: The Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of
the Child (CRC), the Inter-American Convention on the Prevention, Punishment and Eradication of
Violence Against Women (The Convention of Belem Do Para).’ 3 <https://eric.ed.gov/?id=ED408074>
accessed 30 March 2025

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