Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

106 PRACTITIONERS GUIDE No. 12
Advocates representing women will frequently need to address
these discriminatory customary rules, which may be recognized
in jurisprudence, common law or traditional courts. The CEDAW
Committee has called on States parties to “consult with the
relevant communities, in particular the women, as part of the
process of reforming discriminatory laws and practices”. 267
Legal practitioners should engage in such consultative
processes, in addition to working to modify or mitigate the
adverse impact of these laws and practices in the course of
their professional work.
When a State argues that a discriminatory law is required by
custom, one expert, Hilary Charlesworth, has suggested that it
may be helpful for advocates preparing arguments to
challenging the law to raise the following questions:
1. Who is claiming to speak for a “culture”, religion or a
“tradition”? It may be that there is a difference of view
about whether, and if so how, the custom applies and
may be subject to contested interpretation.
2. What is the formal status of the interlocutor?
3. Who benefits from the custom? Frequently a custom is
seen as something that is done because it is agreed to
by all, and it is “what has always been done”. Where a
lawyer can point to the burden imposed on women by a
custom, and the benefits that men enjoy as a result,
this can show in plain view that a custom should not
persist. 268
267
CEDAW Commentary, above note 240, page 91.
268
Hilary Charlesworth, 'Two steps forward, one step back?: The field
of women's human rights' (2014) 6 European Human Rights Law
Review, 560-565.