Short Abstract:

My PhD thesis proposes a capabilities-based framework for designing legal empowerment programming to reduce intimate partner violence (IPV). I argue that the framework can ameliorate practical and ideological barriers that commonly arise in low- and middle- income postcolonial countries as a result of the rights-based approach to reducing IPV that dominates across the globe.

Long Abstract:

Gender-based violence against women, the most widespread form of which is intimate partner violence (IPV), is recognised as a global crisis.

As at 1990, only approximately 2% of countries around the world had legislation that specifically addressed IPV. Today, almost 85% do. Despite the vast diversity of cultures, religions, societies, and systems of political, legal and social control across the globe, the legislation in almost all jurisdictions takes a similar form, criminalising acts deemed to constitute IPV and providing civil remedies in the form of protection orders. A key reason for the relative uniformity of legislation relates to the central role the international human rights framework has played in promoting formal measures to reduce IPV and putting pressure on states to take action to eliminate it.

The international human rights law framework has proved an invaluable tool for those working to reduce IPV across the globe. Adopting the language and framework of rights gave a voice to those around the world seeking gender justice for women. It lent legitimacy to their demands and strength to their arguments. Once IPV was recognised as a human rights issue it was short work for it to attract global condemnation and for the dominant legislation-based approach to eliminating it to emerge. The implementation of IPV legislation is invariably supported by legal empowerment programming, being programming designed to help people and communities shape, understand and use the law. This programming is often explicitly informed by mainstream human rights discourse [N1]

For many around the world for whom IPV was a concern, recognition of it as a human rights issue was a resounding win. However, such recognition has also resulted in significant practical and ideological barriers to programming to reduce IPV, particularly in low- and middle-income post-colonial contexts.

Through a review of the literature (with a focus on feminist voices and voices from the “global south”) I identify long standing tensions around key claims, concepts and assumptions that underpin mainstream human rights discourse that threaten to undermine the effectiveness of rights-based programming. These tensions relate to the emphasis on the elimination of IPV without (due) regard to broader economic, social and cultural issues that facilitate it; the emphasis on the individual (which is at odds with many women’s sense of self as being largely relational); and the explicit pursuit of gender equality, which risks undermining other essential aspects of (some) women’s identities.

My thesis looks at the role that legal empowerment programming can play in facilitating the effective implementation of IPV legislation. My central argument is that such programming has significant potential to ameliorate barriers arising from the abovementioned factors if it is designed to apply key principles of the capability approach. I ultimately propose a capabilities-based framework for the design of legal empowerment programming (Capabilities Framework) [N2].

The Capabilities Framework recognises that while it is important for women to have the capability of bodily integrity, and in turn to live a life free from (physical) violence, a life free from violence does not in and of itself amount to a full and valuable one. The framework asks: what other capabilities are at risk when a woman uses systems established under IPV legislation to seek to enhance her capability of bodily integrity? What resources (including social capital) might she need in order to ensure those capabilities can be protected? What social and environmental factors might make it difficult for her to convert those resources into functionings?

The Capabilities Framework pays particular attention to the capability of affiliation [N3]. It asks designers to consider the social context in which programming is being undertaken to ensure that, to the extent possible, (valuable) social structures and institutions are fostered rather than disrupted by engagement with the legal system. In explicitly asking about affiliation, questions of individuality and relationality can be contextually addressed.

The (perceived) legitimacy of IPV legislation can also be enhanced by use of the Capabilities Framework. This is because the framework seeks to facilitate the localisation and vernacularisation of human rights norms and principles, and in turn leave behind the baggage of human rights. The Capabilities Framework does not rely on notions such as “gender equality” that are privileged in mainstream human rights discourse. Instead, it asks programmers to identify and build on the most locally powerful forces and resonant ideas that support action towards the end goal of eliminating IPV.

For the purposes of my PhD, I provide a detailed study of the implementation of the Family Protection Act 2014 (FPA) in Solomon Islands. I draw heavily on qualitative data collected through fieldwork. These data are from interviews conducted with “key knowledgables” (Patton, 2015 page 268) involved in the drafting, enactment and implementation of the FPA; survey responses in relation to human rights, capabilities, IPV and the FPA; and fieldwork observations from site visits. Data collected by me for the purposes of my PhD are triangulated with data from other sources, including scholarly and grey literature, NGO project documents, and government and parliamentary records.

The Solomon Islands case study provides a clear and practical insight into the types of barriers to rights-based programming that arise as a result of tensions around key human rights claims and assumptions. It also demonstrates how those barriers might be ameliorated through use of the Capabilities Framework for program design.

N1: This is because a) human rights discourse underpins the international aid strategies of the high-income countries making the biggest contributions to international programming to reduce IPV and b) countries across the globe have obligations under international human rights law to take action to eliminate IPV.

N2: I use the distinction between “the capability approach” and “a capability application” articulated by Ingrid Robeyns (Robeyns, 2017, p. 29). The framework I propose is a capability application.

N3: Building on Nussbaum (Nussbaum, 2011, p. 39) I recognise affiliation as an architectonic capability that organises/pervades other capabilities.

Keywords: law; legal empowerment; human rights; intimate partner violence; development; capability approach.