21July2017

Editorial

dalia-leinarte1

2014, June 15

The UN Convention on Elimination against All Forms of Discrimination Against Women and its Optional Protocol are the most important international human rights treaties that define the main standards for women’s rights. Member countries that have ratified the Convention are obliged to abide by them.

Another two key international documents in the field of women’s rights are the UN Declaration of Violence Against Women (1993) and the so-called Beijing Declaration and Action Platform (1995), which define combating violence against women as one of the twelve most important fields in gender equality. The latter documents are of a recommendational nature.

A majority of European countries have ratified the UN Convention and its Optional Protocol. That is why all of the more significant initiatives in entrenching women’s rights in Europe take place within the framework of the UN Convention and the other two international documents mentioned earlier. It is obvious that today, in most European countries, we have a new generation of men and women that have been brought up in the tradition of gender equality and women’s rights.

However, violence against women remains one of the most terrible forms of discrimination of women. Violence as a form of discrimination has been included in the UN Convention on Elimination against All Forms of Discrimination Against Women and the Convention’s General Recommendation No 19. However the UN Convention does not feature a separate definition of gender-based violence. That is, in the UN Convention, violence against women is not viewed as violence experienced based on the fact that the victim is a woman.

This lack of the definition in the UN Convention is being resolved by different global regions with the certification of specialized documents. In 1994, Organization of American States passed the the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (the Belem Do Para Convention). In 2003 the African Union passed the Protocol to the African Charter on Human and Peoples’Rightson the Rightsof Women, which unambiguously protects women against their aggressors both in public and in a domestic environment. Both conventions identify violence against women as an infringement of human rights. The South Asia Association for Regional Cooperation has also passed the Dhaka Declaration that is meant to eliminate violence against women in South Asia.

The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (2011) defines violence against women as an infringement of human rights and as a form of discrimination against women. So violence against women is treated here as a crime. Countries that have signed and ratified this Convention are obliged to fight against all forms of violence against women. They also promise to create an environment that does not breed aggression. As in the mentioned regional documents, the Council of Europe Convention states that only by ensuring gender equality can the road to aggression against women be blocked. Stopping violence demands more than just good intentions, but necessitates the coordination of actions on a national, regional and international level. The 26 European countries that have signed this Convention so far, and in doing so express this understanding and determination to work together.


Dalia Leinartė

 

dalia-leinarte1

2014, June 5

The Vienna Declaration and Programme of Action marked a strong reaffirmation by the global community of the principles of universality and indivisibility of human rights, and of equality and non-discrimination in the implementation of human rights standards.

As it was correctly noted by the UN Human Rights Council Advisory Committee, traditional values often impose patriarchal, mono-cultural norms that discriminate against minority and marginalised individuals. Accordingly, during the 22nd session of the Human Rights Council on 18 March 2013 it was stressed again that under no circumstances can human rights be restricted to protect ‘traditional values’. The Human Rights Council Advisory Committee also noted that the so-called “traditional values agenda” is one of the biggest  threats to the progress made over the past 20 years in the implementation of the Vienna Declaration and Programme of Action.

On the other hand, experts recognise that there are “traditional values” that are in line with international human rights standards. The Vienna Declaration provides explicit consideration regarding culture in human rights promotion and protection, stating that "the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind". In this regard The Human Rights Council adopted Resolution 16/3 going by the title “Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind”. In 2012 the Human Rights Council Advisory Committee presented a study “On promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind”. The Study revealed divided views on the relationship between traditional values and human rights, and suggested considerations of the role that traditional values may play in promoting respect for human rights.

Addressing these powerful and influential arguments regarding human rights standards, it should be admitted that one of the most important challenges in our globalized world today, involves recognition that each major society has its own distinctive values and cultures. As a result, one of the most important challenges in our globalized world becomes the successful promotion of human rights across political and cultural boundaries. But the point is, that there is an obvious gap between the idea of universal rights and deep-seated regional cultures. It is obvious that cultural differences pose one of the most significant challenges to human rights treaty bodies, and the work experience of the CEDAW Committee is not an exception here. Traditional values and cultural norms create an impediment for establishing constructive dialogue between member states and the CEDAW Committee as well as hinder implementation of the Convention itself.

It is well known that the CEDAW Convention is one of the most highly ratified international human rights treaties, having the support of 187 State Parties. This is one of the many benefits of the Convention. It can stand as a treaty that has achieved a global consensus and thus reflects the normative standards applicable to women's rights. At the same time, CEDAW is also the UN human rights treaty with the highest number of reservations and declarations. So far, 61 States have entered reservations to one or more articles in the Convention. Reservations affect the efficacy of the Convention, the objective of which is to end discrimination against women and to achieve both de jure and de facto equality for them. Reservations also prevent the Committee from assessing the progress of State Parties’ implementation of the Convention, limit its mandate and potentially affect the entire human rights regime.

It is important to stress that Article 16 of the CEDAW Convention, which is devoted to women’s rights in Marriage and Family Life, is considered by the Committee to be one of the core provisions of the Convention. However, half of the reservations are applied namely to Article 16. Accordingly, during the constructive dialogues, the Committee encourages member states that the removal of the reservations, especially with respect to Article 16, would make a major contribution in achieving compliance with the Convention. However, reservations to Article 16 are rarely withdrawn, simply because marriage and family life are deeply interrelated with cultural norms and traditional practices.

Given these circumstances, during the constructive dialogues and in the Concluding Observations, the CEDAW Committee urges member states to put into action information, awareness-raising and educational campaigns that would change the existing negative cultural norms and practices. Yet the work experience of the CEDAW Committee attests to the fact that simply urging member states to block certain cultural practices is not particularly effective. On the contrary, handing down direct recommendations to change cultural norms does not create productive dialogue between the CEDAW Committee and member states, and sometimes even provokes warnings regarding termination of their CEDAW membership. For example, during the last session of the Committee, warnings were issued by the Tunisian Minister of Religious Affairs regarding the termination of their ratification of the CEDAW Convention. The minister and Tunisian academics claimed, that implementation of the Convention destroys national culture and supposedly harms women.

Likewise, during the United Nations High Commissioner's for Human Rights dialogue with the 3rd Committee members on Wednesday 23 October 2013, Ethiopia on behalf of the African Group made a “request for more respect for cultural values”.

It is important to stress, that an attempt to work with cultural norms that are in line with international human rights standards could also serve against further radicalization of the so called “traditional values agenda”. For example, during that same 22nd session of the Human Rights Council, Egypt together with the Russian Federation, handed over a resolution on “the protection of the family”, which is a clear attempt to promote one ‘traditional’ form of the family over others.

It is obvious that the application of principles of universality and indivisibility of human rights is not free from difficulty. However, innovative work methods could bring some progress in this process. More recent approaches in transnational feminist scholarship place the emphasis on how gender norms are formulated and how they are translated between different cultural, religious contexts, and under which conditions, actors decide to reject international women’s norms. Likewise, International law professor James Crawford calls for a case-by-case approach when it comes to calling for the change of cultural norms and traditions in order to apply human rights universally.

In this regard, I would like to draw your attention to the so-called “receptor approach” method. This is a novel method of human rights application, which has been devised by anthropologists from Utrecht University and funded by the Dutch government. The goal of this method is not only to change cultural norms through international law, but also to adapt positive cultural norms from a women’s rights and gender equality perspective. Here we are speaking about positive cultural norms that have made an important contribution to the development of international human rights norms and standards. Following the “receptor approach”, member states are asked to define and distinguish negative social and cultural norms in their periodical reports, and then to suggest “contra-cultural” elements that could change the existing negative practices and bring into force positive cultural practices. In such cases, the local remedy solutions act as an antidote against negative traditions. Allow me to present an example.

In Sub-Saharan Africa, the patriarchy that underlies customary law sometimes causes gender discrimination. However, this same customary law may also act as a corrective mechanism. This point can be illustrated with the help of the judgment of the South African Constitutional Court in some particular case of Mrs. Bhe.

In 2002 Mrs. Bhe’s husband died. Since they had been married under Xhosa customary law, the inheritance was subject to the principle of male primogeniture. This meant that the deceased husband’s material goods, including the property, were inherited by the deceased husband’s father. Mrs. Bhe, who was left empty-handed, challenged this unsatisfactory outcome before the courts and the case went to the Constitutional Court.

The Court came to the conclusion that the principle of male primogeniture discriminated against women and is in contradiction with the South African Constitution. By introducing Mrs. Bhe to the right to inherit property, formally the Constitutional Court ended the discrimination against women. However, this decision was alien to the collective ownership norms which characterise Xhosa customary law. Land is owned collectively by the people and it is allocated to families in the Xhosa community. Not surprisingly, therefore, the decision of the Constitutional Court in Mrs. Bhe’s case was never enforced.

Interestingly, Xhosa customary law itself could offer a home-grown solution. For example, under customary law the widow could have been appointed the co-administrator of the estate together with the male relative who took over stewardship from the deceased husband. This would have brought the discrimination to an end, while relying on the positive aspects of the cultural norm and tradition.

What a “receptor approach” offers here it is a database which will contain relevant information on positive social institutions/cultural norms for the promotion of gender equality. During the implementation of the CEDAW Convention and the drafting of national reports, State Parties will be able to draw information from this collection of examples and best practices in order to protect women’s rights in places. Accordingly, in the Xhosa customary law case mentioned before, the CEDAW Committee experts would have suggested the possibility of adapting local cultural norms, i.e. to apply them in a way that is compatible with universal women’s rights. For non-State actors may also have responsibilities in international human rights law, particularly when they are acting in the place of the State or fulfilling the functions of the State.
At this point, the “receptor approach” rejects the antagonism between human rights and culture and assists implementation of the CEDAW Convention at the national level. In other words, for human rights to thrive, they have to be rooted in society. Going against the grain or simply adopting a law is not going to ensure implementation of international women’s rights norms. I believe that the work of the CEDAW Committee in the cultural area would be greatly assisted if it decided to rely on a tool like the “receptor approach”, because it will enable the members of the Committee to directly address cultural issues and deal with them while eradicating discrimination and implementing women’s rights.

It seems to me that in applying the “receptor approach” or similar methods, traditional culture does not become a substitute for human rights. On the contrary, I think that working with particular cultures would allow us to recognize cultural integrity and diversity, without compromising the unquestionably universal standard of human rights. Such an approach is essential to ensure that the future will be guided above all by human rights, non-discrimination, tolerance and cultural pluralism.

To end, I can only add that the UN Special Report on violence against women stated that, “the problem posed by cultural relativism, and the implications for women’s rights, is one of the most important issues in the field of international human rights”.