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Limits of Respecting Cultural Traditions and Practices

Definition and Description of Culture

Introduction:

  • In Sub-Saharan Africa, there are more than 3 million girls, the majority of girls, who are at risk of female genital mutilation/cutting,[1] each year.
  • In Djibouti, Guinea, and Somalia, nine in 10 girls ages 15 to 19 have been subjected to FGM/C. 507,000 girls and women.
  • In the United States today have either undergone or are at risk of FGM/C. [2]

Female genital mutilation (FGM) is a violation of the human rights of girls and women. This practice usually follows as a social convention; the social pressure to conform to what others do and have been doing is a strong motivation to perpetuate the practice.[3]

News headline, itself is enough to realize how violence against women and girls is widely happening all over the world, on daily basis and despite the entire constitutional and international legislations and human rights standards.

It becomes more crucial if I draw the attention to the aforementioned bullet points facts again, and add that these practices may not only be persecuted or criminalized, also followed proudly, among some communities.

In this paper, I will try to demonstrate human rights references to culture and traditional and cultural practices. I will review International human rights approach, universal values, cultural practices and also human rights obligations in protecting women and girls’ rights.

I will discuss different arguments from both relativistic and universalist approach towards common values and interests and also how human rights would/should respond to harmful cultural traditions and practices. At the end, I will look at the challenges and come up with set of recommendations.

Human rights

It is commonly said human rights are the rights, one has simply because one is a human being.

Universal Declaration of Human Rights (UDHR) along with two International Covenants, [4] on civil and political rights and on economic, social and cultural rights, are called as core of human rights instruments. According to the text and context of this core, human rights characterized with at least three fundamental elements. Human rights are  (a) universal, (b) equal for everyone (c) individual.

It is hugely debatable among legal theorists and philosophers on the core and essence of human rights, but to make it more simple, as R. Martin tried to summarize different arguments, human rights represent many important interests of humans. [5]’Important’ interests like dignity, security, health, food, shelter, wellbeing and being respected. These commonality and also adoption, ratification[6] and accession to core human rights instruments, might be justify universality of these values and rights, at least in a very general sense.

Human rights are about individuals and protecting them as “moral agents and concerns for them as vulnerable creatures”(Freeman, 2012: 87), which does not mean the community values or personal responsibility, has been ignored. Right to culture, self-determination[7] and right to development are just few examples, which are all respected and supposed to be protected under human rights provisions. 

Universal Human Rights and Cultural Relativism

Here I start with defining culture, then speak about shared and common values and needs and later review some challenges raised from relativists against universality of human rights and some responses.

I am following the broad approach to define culture, as Abdullahi Ahmed An-Na`im’s, when he says the term culture, “… in its broadest sense, is the ”totality of values, institutions and forms of behaviour transmitted within a society…”[8]

I talked about universality of human rights briefly. Historically, human beings share and so many common needs by nature. So many physiological and psychological needs, which have to be acknowledged, respected and protected, by the morality behind the human rights values.

On the other hand, as Donnelly argues, concepts like “life, social order, protection from arbitrary rule, prohibition of inhuman and degrading treatment, the guarantee of a place in the life of the community, and access to an equitable share of the means of subsistence are central moral aspirations in nearly all cultures.”[9]

Despite the fact that so many common moral claims and values shared between human rights and cultures, there are clashes as well. Supporters of cultural relativism, community and religion leaders, claim that there is no universal human right. Here is one of the important response to that, ‘universalism, stipulates that some ideals should have universal scope-not all ideals. As such, it is not vulnerable to the objection (O’Neill 1996: 75, 78).

Most of the cultures claim that there are different interpretations of culture. So, in this case, how can they ensure that there is not a culture that believes in universal morality and same human rights values?

Nussbaum says:

‘Most local traditions take themselves to be absolutely, not relatively, true. So in asking us to follow the local, relativism asks us not to follow relativism.’[10]

‘The moral claims’ made by members of a culture ‘are not that their social understandings are ipso facto, they are justified because they are dominant, regardless of the content of those understandings’ (Gutmann, 1993: 176–7). That would be a counter argument against relativists’ claim that challenges inalienability of human rights values. Since cultures are constantly changing and evolving internally, as well as through interaction with other cultures, there is no guarantee that they will not follow the same values as human rights do.

There is another common oppose from supporters of cultural relativism, who criticized human rights for being representative of the voice of world’s powers and accused all human rights discourse of being politically motivated.

Anthony Appiah, disapproves reducing the whole human rights discourse into just as an exercise in power politics and states:

‘It is characteristic of those who pose as anti-universalists to use the term universalism as if

it meant pseudouniversalism, and the fact is that their complaint is not with universalism at all. What they truly object to- and who would not? – is Eurocentric hegemony posing as universalism. Thus, while the debate is couched in terms of the competing claims of particularism and universalism, the actual ideology of universalism is never interrogated, and, indeed, is even tacitly accepted. Ironically… the attack on something called ‘universalism’ leads to the occlusion of genuine local difference.’[11]

Harmful traditional and practices affecting women and the girls

I discussed earlier, that how human rights respect diversity and different cultures. International Covenant on Civil and Political Rights (ICCPR), itself talks about right to culture and freely pursue of economic, social and cultural development and also obliged states to respect and

ensure these rights.[12] I also emphasised that not individuality nor universalism do not mean that different cultures, cultural and community values, have denied.

At the beginning of this paper, I mentioned some facts about violence happening against women and young girls in different part of the world. Those type of violence and discrimination (like practice of FGM), which drastically affected women and girls’ lives are mostly happening among communities, under justification of cultural/community values and protection of women and community’s ‘honour’. Every year around the world an increasing number of women are reported killed in the name of ‘honour’. Relatives, usually male, commit acts of violence against wives, sisters, daughters and mothers to reclaim their family ‘honour’ from real or suspected actions that are perceived to have compromised it. These are just examples of harmful practices.

The term harmful practices has been mentioned nine times in The Convention on the Elimination of All Forms of Discrimination against Women in its general recommendations.[13]

I am using the definition cited on Joint general recommendation of the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) on harmful practices,[14] which is said:

‘Harmful practices are therefore grounded in discrimination based on sex, gender and age, among other things, and have often been justified by invoking sociocultural and religious customs and values, in addition to misconceptions relating to some disadvantaged groups of women and children.’[15]

To be more clear about the scope and the characteristics of these practices, I am referring to the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child, [16] and characteristics of harmful practices.

  • Denial of the dignity and/or integrity of the individual and a violation of the human rights;
  • Discrimination against women or children and are they result in negative consequences for them as individuals or groups;
  • Traditional, re-emerging or emerging practices that perpetuate male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors;
  • Imposed on women and children by family members, community members or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.

This is the area, I believe that, human rights could not and should not be tolerated and action needs to be taken. These practices seriously affected rights, dignity, health, freedom and life of so many individuals. Women and girls deprived of enjoying their right to health, right to life and right to not to be discriminated against.

Female genital mutilation (FGM), child and/or forced marriage[17], crimes committed in the name of ‘honour’ are just examples of harmful cultural practices[18] which bring negative impacts on girls rights to education and health, to life opportunities and indeed, to life itself.

FGM has been inflicted upon between 100 and 140 million women and girls,[19] and has been documented in 29 countries in Africa, Asia, the Middle East, and Latin America. At least 36 countries worldwide have enacted laws against FGM, demonstrating that in many places it is no longer understood as an acceptable cultural practice, but instead as a harmful violation of women and girls’ rights with horrific health consequences, including severe pain, and complications during childbirth.

Similarly to FGM, countries have increasingly addressed child marriage, as at least 158 countries have set the minimum age for marriage without parental consent at 18 or older. Nonetheless, child marriage persists, as 41 countries have rates of child marriage of 30 percept or more9 and 52 countries allow children under the age of 15 to marry with parental consent.[20] Child marriage is most common in South Asia and West and Central Africa, where two in five girls marry before they reach 18.

In September 2000, the United Nations Population Fund (UNFPA),[21] estimated that as many as 5,000 women and girls are murdered each year in so-called honour killings by members of their own families. Although ‘honour’ killings are widely reported in regions throughout the Middle East and South Asia, United Nations Special Rapporteurs on Extrajudicial, Summary and Arbitrary Executions have reported that these crimes against women occur in countries as varied as Bangladesh, Brazil, Ecuador, Egypt, India, Iran, Iraq, Israel, Italy, Jordan, Morocco, Pakistan, Sweden, Turkey, Uganda and the United Kingdom.[22] There have also been incidents of ‘honour’ killings reported in the United States and Canada.

After reviewing observations and findings on the scope and severity of number of harmful traditional and cultural practices, in this section, I am going to explore the fundamental violation of human rights basic and general principles.

In other word, why human rights could not be tolerated harmful cultural traditions and practices against women and girls?

Human rights general principles

As Ras-Work,[23] states in her study, harmful traditional practices act as root causes for ‘discrimination and violence’ against girls. Several studies both scientific and social reveal the fact that ‘value based discrimination is systematic’ and against women’s and girls’ dignity.

I underline two fundamental and general principles, which are substantial in human rights context. These principles can be also a strong justification, why human rights should take action to prevent and eliminate the harmful cultural traditions and practices, to protect human dignity and peoples from discrimination.

Human dignity

Human dignity, is central to modern human rights discourse, and plays a vital role, in fundamental documents on human rights, United Nations’ Universal Declaration of Human Rights (1948).

The definition and interpretation of ‘human dignity’ is hugely debatable. Some scholars, argue the fact that undefined notion of dignity from the drafter of UDHR, may not be problematic, as the role of human rights as a protector of human persons’ dignity, as it is widely accepted. Griffin says, ‘nearly everyone accepts that human rights protect our dignity as human persons’.[24]   Again, this widely proposed idea could provide a better ground for different groups. Particularly different cultures, to agree that there are such a thing as the dignity of the person, and largely agree on the rights that follow from it (although they may have different understanding of the scope).

The notion of human dignity is not only fundamental in international human rights system, also in regional human rights instruments like in Arab Charter on Human Rights,[25]and also in the African Charter on Human Rights and People’s Rights.[26]

Non-discrimination

The principle of non-discrimination is a basic and general principle relating to the protection of human rights.[27] It is recognised in Article 2 of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and in regional mechanisms, like the American Convention o Human Rights,[28] the European Convention on Human Rights,[29] the African Charter on Human Rights and Peoples’ Rights,[30] Arab Charter on Human Rights.[31]

The definition of the principle of non-discrimination is not clear in the International Covenant on Civil and Political Rights, but the Human Rights Committee has referred to the definition contained in other instruments, like the Convention on the Elimination of All Forms of Racial Discrimination.[32]  It defines the term ‘racial discrimination’ as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.’[33]

This principle has been described as ‘the dominant single theme of the [International] Covenant’[34] on Civil and Political Rights. The theme of non-discrimination therefore runs through this Covenant as a whole.[35] Article 2(2) of the International Covenant on Economic, Social and Cultural Rights is substantially identical to Article 2(1) of the International Covenant on Civil and Political Rights.[36] Together, these provisions highlight the central role of non-discrimination within human rights and international law as a whole.[37]

The principle of non discrimination ensures that all persons within the territory of a state and subject to its jurisdiction will enjoy ‘the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’[38] This principle is non-derogable.[39]

It also obliges the State to take positive measure to ‘diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant [on Civil and Political Rights][40].

Human rights obligation:

Prevention, Empowering, Mobilization;

States’ positive obligations to protect individuals towards human rights violation come from general principles of human rights law and also UN treaty bodies. They have special provisions to take states accountable and responsible for preventing and eliminating harmful cultural traditions and practices affecting women and girls.

Prevention is one of the first steps in combating harmful practices. Both CEDAW and CRC recommend different provisions. They recommend rights-based approach to changing social and cultural norms, through:

  • Empowering Women and Girls;
  • Capacity building the capacity of all relevant professionals who are in regular contact with victims, potential victims and perpetrators;
  • Raising awareness of the causes and consequences of harmful practices;
  • Dialogue with relevant stakeholders;

Nussbaum proposed:

‘…we should also note that the objector, once again, oversimplifies tradition, ignoring counter traditions of female defiance and strength, ignoring women’s protests against harmful traditions, and in general forgetting to ask women themselves what they think of these norms, which are typically purveyed, in tradition, through male texts and the authority of male religious and cultural leaders, against a background of women’s almost total economic and political disempowerment.’ [41]

Due Diligence Standards:

The 1993, Declaration on the Elimination of Violence against Women as well as other international instruments adopted the concept of due diligence, in relation to violence against women, as a tool to evaluate whether the State has met its obligation. Under the due diligence obligation, States have a duty to take positive action to prevent and protect women from violence.[42]

Raising awareness about due diligence standards, can be also applicable as an element to encourage the culture of accountability, access to remedy and right based approach, where harmful cultural and traditions are practising.

Changing social and cultural norms, which practiced from generation to generation, might be extremely challenging, as Embarek Warzazi, UN Special Rapporteur,[43] expresses in her observation and analysis:

‘…mobilization within the societies affected by the phenomenon of harmful traditional practices is still a force for positive, albeit slow, change.’

In her comprehensive report, she also warns against the dangers of “demonizing cultures” under cover of condemning practices harmful to women and the girl child. This introduced another dimension to challenges towards changing social and cultural norms and best approaches to follow.

International Human Right based Initiatives and Practices

  • “Zero Tolerance to FGM”[44], is one of the international initiatives, focusing on 17 African countries, started from 2012 and achieved encouraging development. 16 countries have adopted legislation against FGM and other harmful traditional practices.
  • Programmes in Ethiopia (2004) and Benin (2003) to give more examples of legal reform and achievements, Benin adopted legislation to ban all forms of FGM.  In Ethiopia in a program called Berhane Hewan,[45] run to protect girls at risk of child marriage and to support married adolescent girls. It also organized information sessions, led by adult female mentors, for girls to learn about reproductive health, family planning services, and practical skills.  An evaluation of the program in 2006, showed a considerable improvement in school attendance and literacy levels among girls and also increased educational accomplishment.[46]

These stories demonstrate that, changing attitudes and practices is possible. But it does not suggest that changing attitudes and practices is only about passing binding legislation and legal reforms. Supportive legality and legislation policies would be necessary but not sufficient.

Concluding summary

In this paper I tried to point out the commonality between human rights values and cultural values and also humans common needs and interests which endorse this idea. I raised couple of major to the universality of human right from relativism perspective and also some arguments to respond to them, although the discourse between relativism and cosmopolitanism approach to human rights is an ingoing and debatable issue. Then I demonstrate the existing reality of violation of basic human rights of women and girls under harmful cultural traditions and practices and how and why human rights approach is needed to prevent and eliminate these kind of violence against women and girls with justification of cultural practices.

A number of recommendations can be offered based on recommendations of UN committee, reports of special rapporteurs and other international human rights and health organizations.

Here I am going to conclude this paper with couple of important and crucial aspects of human rights approach actions, aiming to change harmful cultural norms and practices against women and girls.

  • Participatory advocacy approach and engaging policies to give the voice and agency to women of that community;
  • Provide positive alternative information, which carefully tailored manner involving all the sectors of the population;
  • Raising awareness about women’s rights and demanding government, accountability for violations of its obligation under international law to prevent and respond to violence against women with due diligence;[47]
  • Participating people from community in every levels, especially decision making process to let the changes taking place in a sustained manner;
  • Support and encourage women’s initiatives against harmful norms and practical cultural practice[48].

During the whole process of promoting a human rights approach to change harmful norms and cultural practices, no one should undermine any woman’s choice to lead a traditional life, so long as she does it with certain economic and political opportunities firmly in place.

Finally as Nussbaum proposes:

‘ The road ahead is long, but once women are reconciled with themselves, once they have economic autonomy and control of their fertility, they will be for ever free from the thrall of harmful traditional practices.’[49] 

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