The following section provides an overview of the various international and regional human rights instrument and policy documents which address either directly or indirectly, the issue of harmful practices. The international legal and policy framework obliges all States to enact, implement and monitor legislation on all forms of violence against women and girls, including harmful practices. While some instruments explicitly reference one or more harmful practices, for the most part, the instruments discussed below refer generally to harmful traditional or cultural practices. Relevant sections of this Knowledge Module may be referred to for sources of human rights law specific to female genital mutilation, forced and child marriage, maltreatment of widows, honour crimes and dowry-related violence.
... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 1.
In addition, the Recommendation acknowledges the following:
Paragraph 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 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 the low level of political participation and to their lower level of education, skills and work opportunities.
Paragraph 20: In some States there are traditional practices perpetuated by culture and tradition that are harmful to the health of women and children. These practices include dietary restrictions for pregnant women, preference for male children and female circumcision or genital mutilation.
The Committee 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);
States Parties to CEDAW must eliminate harmful practices by undertaking various measures, including:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women. Article 2 (emphasis added).
In addition, States Parties to CEDAW are required to “modify the social and cultural patterns of conduct … 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 5.
Finally, Article 16 provides for the elimination of “discrimination against women in all matters relating to marriage and family relations,” and specifically states:
The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. Article 16(2)
With regard to harmful practices, States Parties to the Convention are required to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence …while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” Article 19(1).
The Convention also requires States Parties to create “social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article 19(2).
Article 24 requires states to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of the children.” (Article 24(3))
(6) In addition, Article 37 mandates that States Parties ensure the protection of children from “torture or other cruel, inhuman or degrading treatment or punishment.”
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