Overview and international legal instruments

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.

International legal instruments

The Universal Declaration of Human Rights, 1948, provides a broad foundation for the protection of women against harmful practices. Article 1 provides that “[a]ll human beings are born free and equal in dignity and rights.” Article 3 states that “Everyone has the right to life, liberty and security of person.” Under Article 5, “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment. Article 7 states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.” Article 8 declares that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Article 12 protects an individual’s privacy while Article 16 provides for equality within and upon dissolution of marriage as well as for marriage to be entered into only upon consent of both parties. Article 25 addresses motherhood and childhood and more generally, Article 28 states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

Similarly, the International Covenant on Civil and Political Rights (ICCPR) (1966) prohibits discrimination on the basis of sex, and mandates States Parties to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” Article 2. In addition, the ICCPR protects individuals from “torture or cruel, inhuman or degrading treatment” and arbitrary or unlawful interference with their privacy. Articles 7 and 17. The ICCPR states that everyone has the “right to liberty and security of person” and that “[e]very child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Articles 9 and 24.

The preamble to the International Covenant on Economic, Social and Cultural Rights (1976) acknowledges that human rights “derive from the inherent dignity of the human person.” Article 3 declares that the States Parties must “ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” Article 12 protects the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” In its General Comment No. 14, the Committee on Economic, Social, and Cultural Rights elaborates the obligation of States 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.”

The Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 defines discrimination against women as:

... 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 General Recommendation No. 19, (11^th Session, 1992), the Committee on the Elimination of Discrimination against Women affirms that violence against women is a form of discrimination against women as set forth in Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women.

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)

The Convention on the Rights of the Child (CRC), 1989, places on the government the ultimate responsibility for ensuring that the fundamental rights of children are recognized and protected. The CRC establishes standard whereby “the best interests of the child” is to be the guiding principle for all actions concerning children. Article 3.

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.”

Each of the following General Comments by the Committee on the Rights of the Child specifically identify harmful practices as violations of the Convention on the Rights of the Child: