PART 1 Equal treatment and non-discrimination on the basis of sex is a fundamental human right firmly enshrined in all major international and regional instruments39 (see discussion under Principles 3 and 7 and related guidelines). The Convention on the Elimination of All Forms of Discrimination against Women defines such discrimination as: [A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (art. 1). It is widely accepted that this prohibition requires States parties to take action to prevent private as well as public acts of discrimination.40 The prohibition on sex-based discrimination is related to and reinforces the duty of equal application of the law.41 Charter of the United Nations, Preamble, Article 1 (3); International Covenant on Civil and Political Rights, articles 2, 3, 26; International Covenant on Economic, Social and Cultural Rights, articles 2, 3, 7; African Charter, articles 2, 18 (3); American Convention on Human Rights, article 1; European Convention on Human Rights, article 14. 39 See Committee on the Elimination of Discrimination against Women, general recommendation No. 19: Violence against women, para. 9; Declaration on the Elimination of Violence against Women, General Assembly resolution 48/104, article 4 (c); “Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy” (E/CN.4/1995/42, para. 72). See also Theodor Meron, Human Rights Law-making in the United Nations (1986), p. 60. 40 Article 26 of the International Covenant on Civil and Political Rights, for example, provides that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this 41 40 The discussion under Principle 5 and related guidelines confirms the link between sex-based discrimination and vulnerability to trafficking. Violence against women is not directly addressed in any of the major international or regional human rights instruments.42 However, attitudes are changing and the issue is now a fixture on the mainstream human rights agenda. Two United Nations instruments are significant: general recommendation No. 19 on violence against women issued by the Committee on the Elimination of Discrimination against Women, and the Declaration on the Elimination of Violence against Women adopted by the General Assembly in 1993. Also relevant, both in a regional context as well as in terms of its overall influence on the direction and content of the debate on violence against women, is the 1994 Inter-American Convention on Violence against Women. General recommendation No. 19 brings the issue of violence against women within the Convention on the Elimination of All Forms of Discrimination against Women by stipulating that the definition of discrimination contained in article 1 includes gender-based violence, i.e., violence that is directed against a woman because she is a woman or that affects women disproportionately. Gender-based violence is identified as “a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. According to the Committee on the Elimination of Discrimination against Women, gender-based violence includes “acts that inflict physical, mental or sexual harm or respect, the law shall prohibit any discrimination and shall guarantee to all persons equal and effective protection against discrimination on any ground such as … sex”. This omission and the reasons behind it have been the subject of extensive analysis. For a useful overview, see E/ CN.4/1995/42. 42 RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING