Minerva, Fall 2011 - Citizens for Global Solutions

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Women are frequently the subject of traditions— often linked to national, culturalor ethnic practices — which violatehuman rights and freedoms. For example,reports of the Special Rapporteur on violenceagainst women have repeatedlyaddressed harmful traditional practicessuch as: female genital mutilation; honourkillings; spousal abuse; dowry-relatedviolence; and customary laws that denywomen’s equality. Last year a [HumanRights Council] resolution on discriminationagainst women recognized that“laws, policies, customs and traditionsthat restrict women’s equal access to participatefully in development processesand public and political life are discriminatory”(A/HRC/12/L.3/Rev.1).The link between traditional valuesand traditional practicesHarmful traditional practices are frequentlylegitimised by the values on which theyare founded. Building on the work of independentexperts, including the formerSpecial Rapporteur on harmful traditionalpractices, the OHCHR has emphasized:“Every social grouping in the worldhas specific traditional cultural practicesand beliefs, some of which are beneficialto all members, while others are harmfulto a specific group, such as women. Despitetheir harmful nature and their violationof international human rights laws,such practices persist because they are notquestioned and take on an aura of moralityin the eyes of those practising them.”As one NGO representative pointed out ina statement to the Human Rights Councilduring discussions around the resolutionon traditional values:“Today, women and other marginalizedcommunities in my region and aroundthe world have made significant gains.Yet there are some who still advance socalled‘tradition’ as an argument againstmany attempts to remedy injustices orprotect human rights:- calling on the State to protect womenfrom domestic violence, we are told,would violate the ‘traditional value’ offamilial privacy;- combating marital rape allegedly contravenesthe ‘traditional value’ of women’sduty to obey their husbands;- equality in marriage similarly goesagainst the ‘traditional value’ of maleguardianship, or qawama.“Even when [our] government finallydecided to ban the practice of femalegenital cutting last year, it was accused ofstanding against the ‘traditional value’ ofprotecting the chastity of girls.” 2UN Precedents on Tradition, Cultureand Human RightsMany UN instruments and resolutionsrecognize key principles and standardsregarding the relationship between tradition,culture and human rights. In particular:(i) While cultural, traditionaland regional specificities must be bornein mind, States have an obligation to promoteand protect all human rights andfundamental freedoms, “regardless oftheir political, economic and cultural systems”;(ii) Tradition and culture maynot be invoked to violate human rightsnor to limit their scope;(iii) States have a positive obligationto work towards the eliminationof harmful traditional or cultural beliefs,values, stereotypes or practices that areinconsistent with human rights.For example:• The Convention on the Elimination ofDiscrimination Against Women affirmsthat “a change in the traditional role ofmen as well as the role of women in societyand in the family is needed to achievefull equality between men and women”(CEDAW, preamble), and requires Stateparties to “take all appropriate measuresto modify the social and cultural patternsof conduct of men and women, with aview to achieving the elimination of prejudicesand customary and all other practiceswhich are based on the idea of theinferiority or the superiority of either ofthe sexes or on stereotyped roles for menand women” (CEDAW Art. 5).• The Vienna Declaration and Programmeof Action calls upon Statesto work towards the elimination of “theharmful effects of certain traditional orcustomary practices, cultural prejudices34 • Minerva #39 • November 2011and religious extremism” (VDPA, para.38).“All human rights are universal, indivisibleand interdependent and interrelated.... While the significance of national andregional particularities and various historical,cultural and religious backgroundsmust be borne in mind, it is the duty ofStates, regardless of their political, economicand cultural systems, to promoteand protect all human rights and fundamentalfreedoms” (VDPA, para.5).• The Declaration on the Eliminationof Violence against Women (A/RES/48/104) recognizes traditional practicesharmful to women as a form of violenceagainst women, and includes amongstthese harmful traditional practices: “battering,sexual abuse of female children in thehousehold, dowry-related violence, maritalrape, and female genital mutilation”.• HRC Resolution 7/29 on the Rights ofthe Child expresses concern at “the horrificscale and impact of all forms of violenceagainst children, in all regions, intheir homes and families, in schools, careand justice systems, workplaces and incommunities, and urges States … to takemeasures to change attitudes that condoneor normalize any form of violence againstchildren, including cruel, inhuman or degradingforms of discipline, harmful traditionalpractices and all forms of sexualviolence” (OP 14(e), 2008).That resolution also calls upon States totake all necessary measures “to eliminateall forms of discrimination and violenceagainst girls, including female infanticideand prenatal sex selection, rape,sexual abuse and harmful traditional orcustomary practices, including femalegenital mutilation, son preference, marriageswithout free and full consent of theintending spouses, early marriages andforced marriages, and forced sterilization,including addressing their root causes”(OP 24(b)).• HRC Resolution 6/37 on the Eliminationof All Forms of Intolerance andof Discrimination Based on Religionor Belief emphasises the need to address“the situations of violence and discrimi-
nation that affect many women as well asindividuals from other vulnerable groupsin the name of religion or belief or due tocultural and traditional practices” (PP 10and OP 11(b)).• HRC Resolution 10/23, on the IndependentExpert in the field of culturalrights, affirms that “no one may invokecultural diversity to infringe upon humanrights guaranteed by international law,nor to limit their scope”.• The UN Declaration on the Rights ofIndigenous Peoples affirms the spiritualtraditions of Indigenous Peoples, whilealso underscoring that the “human rightsand fundamental freedoms of all shall berespected” (art 46).• The Beijing Declaration and Platformfor Action (A/CONF.177/20) requiresgovernments to “refrain from invokingany custom, tradition or religious considerationto avoid their obligations”.• The African Women’s Protocol requiresStates to “eradicate elements in traditionaland cultural beliefs, practices andstereotypes which legitimise and exacerbatethe … tolerance of violence againstwomen”.• HRC Resolution 16/3 – mandate ofthe study, “Promoting human rights andfundamental freedoms through a betterunderstanding of traditional values of humankind”,stresses that “traditions shallnot be invoked to justify harmful practicesviolating universal human rights normsand standards”. It tasks the AdvisoryCommittee to “prepare a study on how abetter understanding and appreciation oftraditional values of dignity, freedom andresponsibility can contribute to the promotionand protection of human rights”.In light of the previous discussion and examples,it cannot be assumed that these“traditional values” will contribute to thepromotion and protection of human rights.This is why the Advisory Committee hasbeen requested to prepare a study whichwill fully explore the impact of these “traditionalvalues” on human rights. Thismeans understanding and appreciatingboth the positive and negative impacts.Dignity as a traditional valueThe concept of “dignity”, particularlyafter a reference to “traditional values”,can be misused to justify human rightsviolations, through concepts such as the“dignity of women”. Such problematicuses suggest a particular “dignified” rolefor individuals within society based onthe extent to which they play a traditionalrole. Dignity is in fact inherent to the humanperson and, thus, it is important thatthe Advisory Committee’s report focuson the language from the preamble of theUDHR that affirms “the inherent dignityand worth of the human person”.Responsibility as a traditional valueIt is unclear what is intended by “responsibility”as a traditional value of humankind.It is also unclear under what basisin international human rights law wouldjustify elevating “responsibility” to aprinciple on an equal footing with “theinherent dignity and worth of the humanperson” and “freedom”. The dangers ofsuch a lack of clarity around the conceptof “responsibility” as a traditional valuecan be illustrated by cases where it hasbeen invoked to justify abuses of an individual’shuman rights. For example, awoman’s “responsibility” to maintain the“honour” of the family:“In patriarchal and patrilineal societiesmaintaining the honour of the family is awoman’s responsibility. In these societies,the concept of women as commoditiesand not as human beings endowed withdignity and rights equal to those of menis deeply embedded. Women are seen asthe property of men and they have to beobedient and passive, not assertive andactive” (Special Rapporteur on Violenceagainst Women on “honour” crimes,2002). 3The principle of universality reaffirmsthat all human beings are entitled to thefull enjoyment of all human rights. Thiscan never be conditional on ill-definednotions of “responsibility”. Under internationallaw, the State clearly has theresponsibility to promote and protect universalhuman rights consistently with theuniversal values of equality and non-discrimination,amongst others. Any report to35 • Minerva #39 • November 2011the Human Rights Council should clearlystate the potential negative implications ofan understanding of responsibility whichrelates to traditions, whilst underlining anappreciation for the responsibility of theState in protecting the fundamental rightsand freedoms of the individual.The role of family, community, societyand educational institutionsFinally, the resolution notes “the importantrole of family, community, societyand educational institutions in upholdingand transmitting these values”. It is problematicto promote the “role of family,community, society and educational institutions”without acknowledging that humanrights violations may also come fromwithin these institutions, e.g. in the caseof spousal abuse or marital rape. The SpecialRapporteur on violence against womendedicated an entire report on culturalpractices within the family that are violenttowards women (E/CN.4/2002/83),including female genital mutilation, honourkillings, the pledging of girls for economicand cultural appeasement, witchhunting, incest, forced/child marriage,rape, widow rites, female infanticide, andcaste-based discrimination and violence.Furthermore, the study should acknowledgethat, through the ICPD Programmeof Action (para 5.2a), the internationalcommunity has recognized that “family”takes a plurality of forms, including single-parentfamilies, households with extendedfamilies, families with parents ofthe same sex or gender, etc. This recognitionchallenges traditional forms of relationshipssuch as marriage between a manand a woman as the only kind with “value”and welcomes the value and worth ofalternative forms of relationships as well.Universality of human rights, equality,and non-discriminationThe common “values of humankind”underpinning international human rightslaw are already inscribed in the UniversalDeclaration of Human Rights and otherinternational human rights instruments.These include equality and non-discrimination– specifically to protect groupsthat have “traditionally” faced marginali-
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