Culture, Tradition or
Religion
Examples of statements in UN documents
that
Compiled by Stephanie
Farrior
CEDAW: Committee on the Elimination of
Discrimination against Women
CCPR: Human Rights Committee; monitors
implementation of International Covenant on Civil and Political
Rights
CESCR: Committee on Economic, Social and
Cultural Rights
CRC: Committee on the Rights of the
Child
HRC: Human
Rights Committee
Vienna
Declaration and Programme of Action (1993)
·
Vienna
Declaration and Programme of Action, A/CONF.157/23 (12 July 1993) available at
http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument
Part I, Paragraph 5
5. All human
rights are universal, indivisible and interdependent and interrelated. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with
the same emphasis. While the significance of
national and regional particularities and various historical, cultural and
religious backgrounds must be borne in mind, it is the duty of States,
regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental
freedoms.
Part I, Paragraph 18
18. The
human rights of women and the girl-child are an inalienable, integral and
indivisible part of universal human rights … Gender-based violence and all forms of
sexual harassment and exploitation, including those resulting from
cultural prejudice and international trafficking, are incompatible with the dignity
and worth of the human person, and must be
eliminated.
Part II, Paragraph 22
22. The World Conference on Human
Rights calls upon all Governments to take all appropriate measures in
compliance with their international obligations and with due regard to their
respective legal systems to counter intolerance and
related violence based on religion or belief, including practices of
discrimination against women and including the desecration of religious
sites, recognizing that
every individual has the right to freedom of thought, conscience, expression and
religion.
Part II, Paragraph 38
38. In
particular, the World Conference on Human Rights stresses the importance of
working towards the elimination of violence against women in public and private
life … and the eradication of any conflicts
which may arise between the rights of women and the harmful effects of certain
traditional or customary practices, cultural prejudices and religious
extremism.
Declaration
on the Elimination of Violence Against Women (DEVAW)
· Declaration on the
Elimination of Violence Against Women, adopted by the UN General Assembly in
1993
Article
4
States should
condemn violence against women and should not invoke any custom,
tradition or religious consideration to avoid their obligations with
respect to its elimination. States
should pursue by all appropriate means and without delay a policy of eliminating
violence against women …
Preparations
for the Fourth World Conference on Women,
· Report of the Secretary
General to the Commission on the Status of Women, thirty-ninth session, 15
March-4 April 1995, E/CN.6/1995/3/Add.7 (14 March 1995) available at
http://www.un.org/documents/ecosoc/cn6/1995/ecn61995-3add7.htm
6. The World
Conference on Human Rights (1993) explicitly recognized that “the human rights
of women and of the girl-child are an inalienable, integral and indivisible part
of universal human rights” and that “gender-based violence and all
forms of sexual harassment and exploitation, including those resulting from
cultural prejudice and international trafficking, are incompatible with the
dignity and worth of the human person and must be
eliminated.”
Thus, the
Conference rejected any limitation of international standards of human rights
for women on the grounds of conflict with culture, tradition or
religion.
Beijing
Declaration and Platform for Action
· Beijing Declaration and
Platform for Action, Fourth World Conference on Women (Sept. 1995) available at
http://www.un.org/womenwatch/daw/beijing/ platform/
Paragraph 118
… Violence against women
throughout the life cycle derives essentially from cultural patterns, in
particular the harmful effects of certain traditional or customary practices and
all acts of extremism linked to race, sex, language or religion that perpetuate
the lower status accorded to women in the family, the workplace, the community
and society.
Strategic objective D.1.
Take integrated measures to prevent and eliminate
violence against women
Actions to be taken
124.
By Governments:
a.
Condemn violence against women and refrain from invoking any
custom, tradition or religious consideration to avoid their obligations with
respect to its elimination as set out in the Declaration on the
Elimination of Violence against Women …
General
Assembly resolution reaffirming commitment to Beijing
Declaration
· Further Actions and
Initiatives to Implement the Beijing Declaration and Platform for Action,
A/RES/S-23/3 (16 November 2000) available
at http://www.un.org/womenwatch/daw/ followup/ress233e.pdf
69. (e)
Develop, adopt and fully implement laws and other measures, as appropriate, such
as policies and educational programmes, to eradicate harmful customary or
traditional practices, including female genital mutilation, early and forced
marriage and so-called honour crimes, which are violations of the human rights
of women and girls and obstacles to the full enjoyment by women of their human
rights and fundamental freedoms, and intensify efforts, in
cooperation with local women’s groups, to raise collective and individual
awareness of how these harmful traditional or customary practices violate
women’s human rights…
Resolution
extending mandate of Special Rapporteur on Violence Against
Women.
· Elimination of Violence
against Women, U.N. Commission on Human Rights, Resolution 2003/45 (Apr. 23,
2005)
Paragraph 14
[The Commission on Human
Rights] [s]tresses that States have an affirmative duty to promote and
protect the human rights of women and girls and must exercise due diligence to
prevent, investigate and punish acts of all forms of violence against women and
girls, and calls upon
States …
(d) To condemn violence
against women and not
invoke custom, tradition or practices in the name of religion or culture to
avoid their obligations to eliminate such
violence[.]
Convention on
the Elimination of All Forms of Discrimination Against Women
Article 5
States Parties shall take all appropriate
measures:
(a) To modify the social and
cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are
based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women;
Article
10(c)
States
parties shall take all appropriate measures to eliminate
discrimination against women in order to ensure to them equal rights with mean
in the field of education and in particular to ensure, on a basis of equality
with men:
(c) The elimination of any stereotyped
concept of the roles of men and women at all levels and in all forms of
education by encouraging coeducation and other types of education which
will help to achieve this aim, and in particular, by the
revision of textbooks and school programmes and the adaptation of teaching
methods;
CEDAW General Recommendation No. 3 (1987): Education and
public information programmes
The Committee on the Elimination of Discrimination
against Women…
Urges all
states parties effectively to adopt education and public information programmes,
which will help eliminate prejudices and current practices that hinder the full
operation of the principle of the social equality of women.
CEDAW General Recommendation No. 19 (1992): Violence
against women
11.
Traditional
attitudes by which women are regarded as subordinate to men or as having
stereotyped roles perpetuate widespread
practices involving violence or coercion, such as family violence and
abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may
justify gender-based violence as a form of protection or control of women. The effect of such violence on the
physical and mental integrity of women is to deprive them of the equal
enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly
actual or threatened violence the underlying consequences of these forms of
gender-based violence help to maintain women in subordinate roles and contribute
to their low level of political participation and to their lower level of
education, skills and work opportunities.
21. Rural women are at risk of
gender-based violence because of traditional attitudes regarding the subordinate
role of women that persist in many rural communities. Girls from rural communities are at
special risk of violence and sexual exploitation when they leave the rural
community to seek employment in towns.
Specific recommendation
24. …[T]he Committee on the Elimination of Discrimination
against Women recommends that:
(e) States parties in their reports should identify the
nature and extent of attitudes, customs and practices that perpetuate violence
against women and the kinds of violence that result. They should report on the measures that
they have undertaken to overcome violence and the effect of those
measures;
(f) Effective measures should be taken to overcome these attitudes and practices. States should introduce education and public information programmes to help eliminate prejudices that hinder women’s equality (recommendation No. 3, 1987)…
13. The form
and concept of the family can vary from State to State, and even between regions
within a State. Whatever form it
takes, and whatever the
legal system, religion, custom or tradition within the country, the treatment of
women in the family both at law and in private must accord with the principles
of equality and justice for all people, as article 2 of the Convention
requires.
15. While most countries report that national
constitutions and laws comply with the Convention, custom, tradition and failure
to enforce these laws in reality contravene the
Convention.
CEDAW General
recommendation No. 23 (1997):
Political and public life
20(c)
In many nations,
traditions and social and cultural stereotypes discourage women from exercising
their right to vote. Many
men influence or control the votes of women by persuasion or direct action,
including voting on their behalf.
Any such
practices should be prevented;
27. States parties have a further
obligation to ensure that barriers to women’s full participation in the
formulation of government policy are identified and overcome. These barriers include
complacency when token women are appointed, and traditional and customary
attitudes that discourage women’s participation.
44. States
parties should explain the reason for, and effect of, any reservations to
articles 7 or 8 and indicate where the
reservations reflect traditional, customary or stereotyped attitudes towards
women’s roles in society, as well as the steps being taken by the States parties
to change those attitudes.
48. When reporting under article
7, States parties should:
(a)
Describe the legal provisions that give effect to the rights contained in
article 7;
(b)
Provide details
of any restrictions to those rights, whether arising from legal provisions or
from traditional, religious or cultural
practices;
(c)
Describe the
measures introduced and designed to overcome barriers to the exercise of those
rights;
Human Rights
Committee – General Comment No. 28 (2000): The equality of rights between men
and women
5. Inequality in the enjoyment of rights by women
throughout the world is deeply embedded in tradition, history and culture,
including religious attitudes. The subordinate role of women in some countries
is illustrated by the high incidence of prenatal sex selection and abortion of
female foetuses. States
parties should ensure that traditional, historical, religious or cultural
attitudes are not used to justify violations of women's right to equality before
the law and to equal enjoyment of all Covenant rights. States parties should
furnish appropriate information on those aspects of tradition, history, cultural
practices and religious attitudes which jeopardize, or may jeopardize,
compliance with article 3, and indicate what measures they
have taken or intend to take to overcome such
factors.
13. States parties should provide information on any
specific regulation of
clothing to be worn by women in public. The Committee stresses that such
regulations may involve
a violation of a number of rights guaranteed by the Covenant, such as:
article 26, on non-discrimination; article 7, if corporal punishment is imposed
in order to enforce such a regulation; article 9, when failure to comply with
the regulation is punished by arrest; article 12, if liberty of movement is
subject to such a constraint; article 17, which guarantees all persons the right
to privacy without arbitrary or unlawful interference; articles 18 and 19, when women
are subjected to clothing requirements that are not in keeping with their
religion or their right of self-expression; and, lastly, article 27, when the
clothing requirements conflict with the culture to which the woman can lay a
claim.
28. The obligation of States parties to protect children
(art. 24) should be carried out equally for boys and girls. States parties
should report on measures taken to ensure that girls are treated equally to boys
in education, in feeding and in health care, and provide the Committee with
disaggregated data in this respect. States parties should
eradicate, both through legislation and any other appropriate measures, all
cultural or religious practices which jeopardize the freedom and well-being of
female children.
31. . . . .
The Committee has also often observed in reviewing States parties’ reports that
a large proportion of women are employed in areas which are not protected by
labour laws and that
prevailing customs and traditions discriminate against women, particularly with
regard to access to better paid employment and to equal pay for work of equal
value. States parties should
review their legislation and practices and take the lead in implementing
all measures necessary to eliminate discrimination against women in all
fields, for example by prohibiting discrimination by private actors in
areas such as employment, education, political activities and the provision of
accommodation, goods and services.
States parties should report on all these measures and provide
information on the remedies available to victims of such
discrimination.
32. The rights which persons
belonging to minorities enjoy under article 27 of the Covenant in respect of
their language, culture and religion do not authorize any State, group or person
to violate the right to the equal enjoyment by women of any Covenant rights,
including the right to equal protection of the law. States should report
on any legislation or administrative practices related to membership in a
minority community that might constitute an infringement of the equal rights of
women under the Covenant (communication No. 24/1977, Lovelace v. Canada, Views adopted
July 1981) and on measures taken or envisaged to ensure the equal right of men
and women to enjoy all civil and political rights in the Covenant. Likewise,
States should report on
measures taken to discharge their responsibilities in relation to cultural or
religious practices within minority communities that affect the rights of
women. In their reports, States parties should pay attention to the
contribution made by women to the cultural life of their
communities.
Committee on
Economic, Social and Cultural Rights—General Comment No. 14
· CESCR General Comment 14
(2000): Article 12: The Right to the Highest Attainable
Standard of Health
. .
.
Women and the right to health
. . .
21. . . . . The realization of women's right to health
requires the removal of all barriers interfering with access to health services,
education and information, including in the area of sexual and reproductive
health. It is also
important to undertake preventive, promotive and remedial action to shield women
from the impact of harmful traditional cultural practices and norms that deny
them their full reproductive rights.
22. . . . .
There is a need to adopt effective and appropriate measures to abolish harmful traditional
practices affecting the health of children, particularly girls, including
early marriage, female genital mutilation, preferential feeding and care of male
children.
Specific legal
obligations
35. . . . . States are also obliged to
ensure that harmful social or traditional practices do not interfere with access
to pre- and post-natal care and family-planning; to prevent third parties from
coercing women to undergo traditional practices, e.g. female genital mutilation;
and to take measures to protect all vulnerable or marginalized groups of
society, in particular women, children, adolescents and older persons, in the
light of gender-based expression of
violence.
Violations
of the obligation to protect
51.
Violations of the obligation to protect follow from the failure of a
State party to take all necessary measures to safeguard persons within their
jurisdiction from infringements of the right to health by third parties. This category includes . . . the failure to discourage the
continued observance of harmful traditional medical or cultural practices
. . .
Committee on
the Rights of the Child—General Comment No.
4
· CRC General Comment 4
(2003): Adolescent Health and
Development in the Context of the Convention on the Rights of the
Child
24. … The Committee strongly urges
States parties to develop and implement awareness-raising campaigns, education
programmes and legislation aimed at changing prevailing attitudes, and address
gender roles and stereotypes that contribute to harmful traditional
practices. Further, States parties
should facilitate the establishment of multidisciplinary information and advice
centres regarding the harmful aspects of some traditional practices, including
early marriage and female genital
mutilation.
39. … States parties must notably
fulfil the following obligations:
…
(g) To protect
adolescents from all harmful traditional practices, such as early marriages,
honour killings and female genital
mutilation.
Reports of the Special Rapporteur on Violence Against
Women
· Preliminary Report of the
Special Rapporteur on Violence Against Women, Its Causes and Consequences,
E/CN/1995/42 (Nov. 1994) available at
http://www.ohchr.org/english/issues/ women/rapporteur/annual.htm
D.
Cultural ideology
…
65. Article
4 of the Declaration on the Elimination of Violence against Women states clearly
that “States should
condemn violence against women and should not invoke custom, tradition or
religious consideration to avoid their obligations with respect to its
elimination.” /General Assembly resolution
48/104./…
66. … Though
interpretation may vary, there is no question that all the world’s religions are
committed to the pursuit of equality and human rights. However, certain man-made practices
performed in the name of religion not only denigrate individual religions but
violate internationally accepted norms of human rights, including women’s
rights… It is the concern of the international community that this
dialogue results in the elimination of man-made practices which violate human
rights and the spirit of equality contained in the world’s religions. This question should be high on the list
of priorities. Religious considerations
should never be used to justify the use of violence against women. / D.L. Eck and D. Jain Speaking of
Faith: Cross Cultural Perspectives
on Women, Religion and Social Change, New Delhi, Kali,
1986./
…
68. Not all
customs and traditions are unprotective of women’s rights… However, those customs and traditions
which involve violence against women must be challenged and eliminated as
violating the basic tenants of international human rights law. / See, for example, A. Sen, “More than
100 million women are missing” in New York Review of Books, 20 December
1990, or A. El-Dareer, Women, Why Do You Weep? Circumcision and its
Consequences, London, Zed, 1982 or M. Kishwar, “Dowry deaths, the real
murders,” Indian Times, 9 April 1989./
· Report of the Special
Rapporteur on Violence Against Women:
Violence in the family, E/CN.4/1996/53 (6 Feb. 1996) available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/
TestFrame/c41d8f479a2e9757802566d6004c72ab?Opendocument
H.
Traditional practices affecting the health of women and
children
101. It is
important to emphasize that not all customs and traditions are unprotective of
womens rights … However, those practices that
constitute definite forms of violence against women cannot be overlooked nor
justified on the grounds of tradition, culture or social conformity.
In this context, many
international human rights instruments, such as the Convention on the
Elimination of All Forms of Discrimination Against Women (art. 5(a)), the
Convention on the Rights of the Child, as well as, most recently, the
Declaration on the Elimination of Violence Against Women and the Beijing
Declaration and Platform for Action call on States to refrain from
invoking any custom, tradition or religious consideration to avoid their
obligation with respect to the elimination of all forms of violence against
women.
· Report of the Special
Rapporteur on Violence Against Women:
Violence in the Community, E/CN.4/1997/47 (12 February 1997) available at
http://www.unhchr.ch/Huridocda/
Huridoca.nsf/TestFrame/043c76f98a706362802566b1005e9219?Opendocument
15. Although
not legally binding, the Declaration on the Elimination
of Violence against Women sets out a comprehensive framework with regard
to the elimination of violence.
With regard to violence against women in the community, the State is called
upon to condemn violence against women and not to invoke custom,
tradition or religion to avoid its obligations. The Declaration recommends, therefore,
that the State take an active role in eliminating and preventing violence
against women by or within the community.
Article 4 of the Declaration requests that States “adopt all appropriate
measures, especially in the field of education, to modify the social and
cultural patterns of conduct of men and women and to eliminate prejudices,
customary practices and all other practices based on the idea of the inferiority
or superiority of either of the sexes and on stereotyped roles for men and
women.” The State is vested with a
positive obligation to bring about redress, not only through legislation,
but also by
fundamentally changing the patterns of socialization which tend to disempower
women and create an atmosphere in which violence against them appears more
legitimate.
32. Increasingly,
States are using cultural relativist
claims to avoid responsibility for positive, anti-violence action. The recognition of
heterogeneous or multicultural communities is not at odds with developing
comprehensive and multifaceted strategies to combat domestic
violence. In all
communities, the root causes of domestic violence are similar, even when the
justifications for such violence or the forms of such violence
vary.
· Report of the Special
Rapporteur on Violence Against Women:
Cultural practices in the family that are violent towards women,
E/CN.4/2002/83 (31 January 2002) available at
http://www.daccessdds.un.org/doc/UNDOC/GEN/G02/104/28/PDF/G0210428.pdf?
OpenElement
I. INTRODUCTION
1. Throughout the world, there are practices in the family that
are violent towards women and harmful to their health. Young girls are circumcised, live under
severe dress codes, given in prostitution, denied property rights and killed for
the sake of honour in the family. These practices and many others
constitute a form of domestic violence but have avoided national and
international scrutiny because they are seen as cultural practices that deserve
tolerance and respect. The
universal standards of human rights are often denied full operation when it
comes to the rights of women.
Cultural relativism is therefore often an excuse to allow for inhumane
and discriminatory practices against women in the community. In the next century, the problems posed
by cultural relativism, and the implications for women’s rights, will be one of
the most important issues in the field of international human
rights.
2. The Convention on the
Elimination of Discrimination against Women is extremely clear. Article 5 states: “State Parties shall take all
appropriate measures: (a) To modify
the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of either of
the sexes or on stereotyped roles for men and women
…”
3. Article 2
of the Convention states: “State
Parties condemn discrimination against women in all its forms, agree to pursue
by all appropriate means and without delay a policy of eliminating
discrimination against women….”
4. The
Declaration of Violence against Women, solemnly proclaimed by the General
Assembly in its resolution 48/104, also states clearly, in article 4, “States should condemn
violence against women and should not invoke any custom, tradition or religious
consideration to avoid their obligations with respect to its
elimination.”
…
8. …[T]here should be maximum
international and national pressure to ensure that religious and customary laws
conform to universally accepted international
norms.
IV. STATE RESPONSIBILITY
…
110. The
Declaration on the Elimination of Violence against Women states
clearly:
“States
should condemn violence against women and should not invoke any custom,
tradition or religious consideration to avoid their obligations with respect to
its elimination. States
should pursue by all appropriate means and without delay a policy of eliminating
violence against women.”
111. …By arguing that custom,
tradition and religion cannot be invoked by States parties to defend violence
against women in the family, international standards reject the cultural
relativist argument that cultural practices that are violent towards women in
the family should be shielded from international
scrutiny.
V. RECOMMENDATIONS
B. At the national level
123. States
should not invoke any
custom, tradition or religious consideration to avoid their obligation to
eradicate violence against women and the girl child in the
family.
· Report of the Special
Rapporteur on Violence Against Women:
E/CN.4/2003/75 (6 January 2003) available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/
d90c9e2835619e79c1256ce00058c145/$FILE/G0310100.pdf
83. [T]he greatest challenge to
human rights comes from the doctrine of cultural relativism where women’s
issues play a vital part…. The greatest challenge is to ensure that the fight
for human dignity is a collective fight involving all the world’s people and not
the imposition of a dominant will.
The greatest
challenge for women’s rights in the next decade is to fight cultural and
ideological practices that violate women’s rights without offending the dignity
of the very women whose rights we are
defending.
· Report of the Special
Rapporteur on Violence Against Women: Towards an effective implementation of
international norms to end violence against women, E/CN.4/2004/66 (26 December
2003) available at
http://daccessdds.un.org/doc/UNDOC/GEN/G04/ 102/02/PDF/G0410202.pdf?OpenElement
B. Expanding
on the concept of violence against women, remaining gaps and
challenges
1. Institutionalization of the link between
male power and violence
…
38. … The new sites of
“normativity,” drawing their legitimacy from culture and religion, have been
identified by the former Special Rapporteur as the greatest challenge to women’s
human rights (see E/CN.4/2003/75, para. 83). The Convention on the Elimination of All
Forms of Discrimination against Women also draws attention to the contradictions
that may arise in the intersectionality of collective rights and the human
rights of women. This paradox begs
the question, “Does the right to cultural difference and specificity, as
embedded in the freedom of religion and belief, contradict the universality of
human rights of women?”
Alternatively, the question can be turned around as follows: “Is control over and
regulation of women the only means by which cultural specificity and tradition
can be sustained?” “Is it culture,
or authoritarian patriarchal coercion and the interests of hegemonic masculinity
that violates the human rights of women everywhere?” “When a man beats his wife, is he
exercising his right in the name of culture? If so, are culture, tradition and
religion the property of men alone?”
39. Universal human rights norms are clear
on these questions. The Declaration
stresses that States “should not invoke any custom, tradition or religious
consideration to avoid their obligations with respect to [the elimination of
violence against women]” (art. 4).
The Dialogue among Civilizations, based on the convergence in values
embedded in the common heritage of human rights, is critical for resisting
religious extremism and its transgression on women’s ‘human rights. It is through such constructive dialogue
that consensus on values and norms can lead to a convergence of action in
achieving unity within diversity.