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UNIVERSITY OF ESSEX

HUMAN RIGHTS CENTRE

MA in Theory and Practice of Human Rights

2013/2014

Supervisor Dr Andrew Fagan

Incompatible Companions
Harmful Cultural Practices and Universal Human Rights in
the United Nations system

Hans Fridlund

Number of Words: 15495


Date of Submission: 2014-09-11

Acknowledgements

I would like to express my sincere gratitude to my dissertation supervisor, Dr Andrew Fagan,


for his generous guidance throughout the writing process. His profound understanding of the
complexity of universal human rights, teaching skills and appreciation of my work has
contributed to an invaluable educational experience. However, any errors or omissions are
solely my own responsibility.
Furthermore, I am, as always, forever grateful for the tireless support extended to me by my
family; Mamma, Pappa, Erik, Mormor & Morfar, Farmor & Farfar.

ii

Table of Contents
1. Introduction .......................................................................................................................... 1
1.1 Area and Scope of Research ............................................................................................. 3
1.2 Limitations ........................................................................................................................ 5
1.3 Methodology..................................................................................................................... 6
2. Cultural Relativism and Universalism ............................................................................... 8
2.1 Universalism ..................................................................................................................... 8
2.1.2 The relative universality of human rights ................................................................ 10
2.1.3 An appeal to the personhood approach .................................................................... 14
2.2 Cultural Relativism ......................................................................................................... 18
2.2.1 Ethnocentricity ......................................................................................................... 21
2.2.2 The unfulfilled promise of Cultural Relativism ....................................................... 25
3. Cultural Relativism and Universalism in the United Nations ........................................ 28
3.1. The Human Rights Council ........................................................................................... 28
3.2. Treaty-based bodies ....................................................................................................... 42
3.2.1 Committee on the Elimination of Discrimination Against Women......................... 43
3.2.2 Committee on Economic, Social and Cultural Rights ............................................. 48
4. Findings ............................................................................................................................... 55
5. Conclusion ........................................................................................................................... 60
Bibliography ........................................................................................................................... 63

iii

1. Introduction
The objective of this dissertation is to examine if the United Nations Human Rights Council
(the Council)1 and treaty-based bodies2 have adopted a uniform approach to harmful cultural
practices (HCP). By employing an interdisciplinary approach this author will first defend the
legitimacy of universal human rights by invoking the personhood approach before conducting
an analysis of how Council Member States and United Nations treaty bodies have addressed
HCP. At the core of this endeavour lies the familiar debate on reconciliation between cultural
relativism and a human rights doctrine that on the international level through the United
Nations (UN) human rights machinery, at least on the face of it, employs a universal approach
to the definition and implementation of human rights.
An array of scholarly work has been dedicated to this debate. Some commentators have
anchored their contributions in international relations and have striven to identify common
standards between the two domains.3 Others have embarked on a mission to confront
misinterpretations of cultural relativism and universalism in relation to human rights.4 The
works of Jack Donnelly5 have been prominent in outlining a defence for universalism whereas
Abdullahi Ahmed An-Naim6 and Makau Mutua7 have often been portrayed as leading
1

In relation to the Council, resolutions, related studies conducted by the Councils Advisory Committee, States
voting behaviour and their oral statements are examined. It is beyond the scope of this dissertation to address the
Human Rights Council Special Procedures, the Human Rights Council Complaint Procedure and the Universal
Periodic Review
2

This dissertation restricts itself to the Committee on Elimination of Discrimination Against Women (CEDAW)
and the Committee on Economic, Social and Cultural Rights (CESCR). It is beyond the scope of this dissertation
to address all treaty bodies.
3

See for example Donoho, D., Relativism Versus Universalism in Human Rights: The Search for Meaningful
Standards, in 27 Stanford Journal of International Law, Vol. 27, 1990, pp. 345-393
4

See for example Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar
Publishing Ltd: Cheltenham, 2009
5

See for example Donnelly, J., Cultural Relativism and Universal Human Rights, in Human Rights Quarterly,
Vol. 6, No, 4, 1984, pp. 400-419; Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013
6

See for example An-Naim, A., A., & Deng, F., [eds. ] Human Rights in Africa: Cross-Cultural Perspectives,
1990
7

See for example Mutua, M., Human Rights: A Political and Cultural Critique. University of Pennsylvania
Press: Philadelphia, 2002

advocates for an approach to human rights built on cultural relativism. While the value added
by these streams of scholarship is invaluable to the present dissertation, I have restricted
myself to a more narrow scope of research. Thus more closely related are studies regarding
cultural relativism and universal compliance with human rights in the United Nations human
rights machinery. How the UN has addressed HCP is, in comparison to related research on
HCP, a relatively underresearched field.8 Regrettably, a common feature in these writings is
the exclusive focus on examining the practices of treaty-based bodies.9 I argue that it is
pivotal to approach UN bodies mandated to protect and promote human rights not as
autonomous particles, as they were never intended as such,10 but as complementary and
interrelated efforts to advance human rights.11 It is my modest hope that by invoking a wider
context that includes both the Council and treaty-based bodies I will be able to offer a more
holistic study of how these bodies have addressed HCP then previous research has done.
The first chapter proceeds by defining the area, scope and limitations as well as the
methodology invoked in this dissertation. Chapter two outlines the debate between cultural
relativism and universalism by drawing on champions of each position. After criticising
Donnellys attempt to reconcile cultural relativism with universal human rights, I base my
support for universal human rights on the personhood approach as it offers adequate
protection for rights-holders against HCP. The third chapter moves the debate to the UN
human rights machinery and explores how the Council and the treaty bodies have addressed
HCP.. In the fourth chapter I compare the findings from these bodies in order to examine if
the Council and treaty-based bodies have adopted a uniform approach to HCP. Lastly, in the
fifth and final chapter I draw my conclusions.
8

See for example Addo, M., Practice of the United Nations Human Rights Treaty Bodies in the Reconciliation
of Cultural Diversity with Universal Respect for Human Rights, in Human Rights Quarterly, Vol. 32, No. 3,
2010, pp. 601-664; Donoho, D., Relativism Versus Universalism in Human Rights: The Search for Meaningful
Standards, in 27 Stanford Journal of International Law, Vol. 27, 1990, pp. 371-376
9

See for example Addo, M., Practice of the United Nations Human Rights Treaty Bodies in the Reconciliation
of Cultural Diversity with Universal Respect for Human Rights, in Human Rights Quarterly, Vol. 32, No. 3,
2010
10

United Nations General Assembly (UNGA) Resolution, Human Rights Council, A/res/60/251, 2006, para. 5(e)

11

See however Clapham, A., United Nations Charter-Based Protection of Human Rights in Krause, C., &
Scheinin, M., [eds.] International Protection of Human Rights: A Textbook. Gummerus Printing: Jyvskyl
2009, pp. 101-103

1.1 Area and Scope of Research


It is indisputably a complicated task to capture the constantly evolving concept of culture.
Nevertheless, here the definition suggested by the UN Education, Scientific and Cultural
Organization (UNESCO) is employed. It states that [c]ulture is that complex whole which
includes knowledge, beliefs, arts, morals, laws, customs, and any other capabilities and habits
acquired by [a human] as a member of society."12 While this definition and the UNESCO
Universal Declaration on Cultural Diversity emphasises the positive elements of culture,
other UN entities have been more critical.13 In 2009, the UN held an Expert Group meeting on
good practices in legislation on harmful practices against women. 14 The outcome report of the
meeting highlighted HCP including female genital mutilation (FGM),15 honour crimes,16
dowry-related issues, 17 stove burning,18 acid attacks,19 forced and child marriage,20 bride
price,21 polygamy22 and payback rape.23 It furthermore underscored that [l]egislation on
harmful practices should provide for the sanctioning of anyone who carries out, aids, abets or
promotes harmful practices against a particular woman or girl.24 It noted that [r]eligious,
12

UN Education, Scientific and Cultural Organization (UNESCO), Cultural Diversity, 2014. [Online]
http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/culturaldiversity/ [Retrieved 2014-09-08]
13

UNESCO, Universal Declaration on Cultural Diversity, 2001

14

United Nations Division for the Advancement of Women and United Nations Economic Commission for
Africa, Good Practices in legislation on harmful practices against women, 2009
15

United Nations Division for the Advancement of Women and United Nations Economic Commission for
Africa, Good Practices in legislation on harmful practices against women. 2009, p. 16
16

Ibid., p. 17

17

Ibid., p. 20

18

Ibid., p. 21

19

Ibid., p. 22

20

Ibid., p. 23

21

Ibid., p. 25

22

Ibid., p. 26

23

Ibid., p. 27

24

Ibid., p. 15

customary, community and tribal leaders play an important role in many communities and
often have significant influence over the behaviour of those within their communities.25 The
Expert Group argued that such legislation should sanction leaders [] when they promote
harmful practices, as well as in instances where they endorse the carrying out of a harmful
practice against a particular woman or girl.26 The very fact that harmful practices are
confined to inverted commas manifests the complex task of defining harmful cultural
practices.
For the purpose of this text I formulate the definition of HCP as potentially or de facto human
rights violating practices that results in non-assented pain, suffering and or humiliation of
individuals and or groups of individuals, that are entrenched in cultural or religious
convictions about the role and position of individuals or groups of individuals in many
societies. This definition employs a narrow and gender-neutral interpretation of HCP that does
not encompass practices that are not explicitly entrenched in a cultural or religious conviction.
Violence against women, for example, including domestic and sexual violence, is prevalent
worldwide with extremely severe consequences for victims. These practices are however a
global concern and span across cultures, communities and nationalities.27 They therefore fall
outside the limited definition of HCP invoked here. The definition is also in line with the UN
Charter which promotes respect for human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion28 and reaffirms the viewpoint of the United
Nations Office of the High Commissioner for Human rights (OHCHR) that,
[t]raditional cultural practices reflect values and beliefs held by members of a community for periods often
spanning generations. Every social grouping in the world has specific traditional cultural practices and
beliefs, some of which are beneficial to all members, while others are harmful to a specific group, such as
women. These harmful traditional practices include female genital mutilation (FGM); forced feeding of
women; early marriage; the various taboos or practices which prevent women from controlling their own
fertility; nutritional taboos and traditional birth practices; son preference and its implications for the status of
25

Ibid.

26

Ibid.

27

World Health Organisation, Global and Regional Estimates of Violence Against Women: Prevalence and
Health Effects of Intimate Partner Violence and Non-partner Sexual Abuse, 2013, Italy: WHO. p. 2
28

United Nations, Charter of the United Nations, 1 UNTS XVI, 1945, Article 1(3)

the girl child; female infanticide; early pregnancy; and dowry price. Despite their harmful nature and their
violation of international human rights laws, such practices persist because they are not questioned and take
on an aura of morality in the eyes of those practicing them.29

1.2 Limitations
In pursuing an answer to the research question,30 I have, in relation to the Council, examined
potentially culturally sensitive thematic resolutions on Traditional values, Sexual orientation
and gender identity (SOGI), Womens human rights, FGM and Child, early and forced
marriage,31 related studies conducted by the Councils Advisory Committee, States voting
behaviour and their oral statements. In relation to the treaty bodies, Concluding Observations,
General Comments and Individual Complaints arising from the Committee on Elimination of
Discrimination Against Women (CEDAW)32 and the Committee on Economic, Social and
Cultural Rights (CESCR)33 are examined. I argue that this selection transcends the divide
between charter- and treaty based bodies and embraces a wide scope of rights while also
acknowledging rights-holders that might be particularly threatened by HCP. Moreover, it has
the added benefit of examining if the element of progressive realisation in ICESCR affects
how its corresponding supervising Committee has addressed HCP.

29

Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No.23, Harmful Traditional
Practices Affecting the Health of Women and Children, 1995, pp. 1-2
30

Have the United Nations Human Rights Council and treaty-based bodies adopted a uniform approach to HCP?

31

This is not to say that migrant workers or persons with disabilities, for example, are immune to HCP or that
recommendations from the Universal Periodic review, the work of Special Procedures or other Human Rights
Council resolutions are irrelevant for this research area. I hope to be able to return to these rights-holders and
extend the scope of resolutions and recommendations scrutinized in future works.
32

The treaty body monitoring States Parties compliance with the International Covenant on the Elimination of
All Forms of Discrimination Against Women. See UNGA, International Convention on the Elimination of All
Forms of Discrimination Against Women, UNTS, vol. 1249, p.13, 1979 (ICEDAW)
33

The treaty body monitoring States Parties compliance with the International Covenant on Economic, Social
and Cultural Rights. See UNGA, International Covenant on Economic, Social and Cultural Rights, UNTS, vol.
993, p. 3, 1966 (ICESCR)

1.3 Methodology
It follows from the interdisciplinary approach to this topic that while chapter 1 is based on
scholarly work, chapter 2 draws on legal and other materials from UN human rights bodies. I
have restricted the scope in relation to Council resolutions to a thematic selection as argued
for above. When panel discussions and studies have been mandated by these resolutions I
have included them in the text. Notwithstanding that potential tension between cultural
relativism and universalism might be demonstrated in other resolutions, I have endeavoured to
make an exhaustive selection of resolutions that either explicitly refer to HCP such as female
genital mutilation or child, early and forced marriages or are likely to divide States in the
Council such as resolutions on traditional values, SOGI and womens human rights on the
basis of different views on cultural relativism and universalism in relation to human rights. In
order to further clarify States positions in relation to these resolutions it has been crucial to
research not only voting behaviour but also their oral statements. Whenever available, I refer
to the original written version of the oral statement from the website of the OHCHR. When
the original has been unavailable, I reference to UNs Press Service which publishes
summaries of oral statements under the News and Events section of the website of the
OHCHR. When the original has not been published in English I have, in addition to the
original statement in a foreign language, also made reference to the UNs Press Service which
provides a summary of that statement in English. Of course, it is neither possible nor practical
to include all available oral statements.34 Since the objective is to offer a representative
account of the debate I have, to avoid sample bias, selected oral statements that are
characteristic of either proponents of universalism or cultural relativism.
In relation to treaty bodies, the eleven year framework (1993-2014) is imposed for practical
reasons as it would be neither possible nor practical to include all available material stemming
from CEDAW and CESCR. It must be noted that the focus here is on how these bodies have
addressed HCP in States Parties, not the States Parties themselves. As a consequence of forms
of HCP not being geographically or regionally evenly distributed, States Parties are not
represented in a numerically representative sample in relation to regional location. In order to
34

To access documents from the Human Rights Council Extranet website use hrc extranet as username and
1session as password. [Retrieved 2014-09-04]

avoid sample bias and selectivity when engaging with materials I have made the conscious
decision to include States Parties that are not on the conventional list of States Parties with
citizens widely known to suffer from HCP. This contributes to a balanced and objective
analysis of the material and strengthens the reliability of the research method and the validity
of findings and conclusions. Yet, for all good intentions and efforts, the potential risk of
sampling bias should be noted.

2. Cultural Relativism and Universalism


The purpose of the first segment of this chapter is to introduce the debate between cultural
relativism and universalism in relation to human rights by drawing on advocates of each
position. After criticising Donnellys attempt to reconcile cultural relativism with universal
human rights, I offer my support for universal human rights to the personhood approach as it
offers adequate protection for rights-holders against HCP. The second segment examines the
element of ethnocentricity and finds cultural relativism inadequate to propose convincing
solutions around this human rights issue.

2.1 Universalism
Proponents of human rights as universally valid often anchor their position in the Universal
Declaration of Human Rights (UDHR)35 and the Vienna Declaration and Programme of
Action (VDPA).36 However, a closer scrutiny of these instruments illustrate that they are not
unanimously supportive of the notion of human rights as universal. Rather, as noted by
Michael Freeman, they encapsulate the delicate relationship between cultural relativism and
the universality of human rights.37 UDHR sets forth in its preamble that national and
international human rights efforts shall strive to [] secure their universal and effective
recognition and observance.38 Article 1 states that [a]ll human beings are born free and
equal in dignity and rights39 and Article 2 holds that [e]veryone is entitled to all the rights
and freedoms set forth in this Declaration, 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.40 Freeman unpacks the claim of a Universal Declaration of Human

35

UNGA, Universal Declaration of Human Rights, 217 A (III), 1948 (UDHR)

36

UNGA, Vienna Declaration and Programme of Action, A/CONF.157/23, 1993 (VDPA)

37

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 119

38

UDHR, preambular paragraph (pp). 8

39

Ibid., Article 1

40

Ibid., Article 2

Rights and identifies three categories of universal rights.41 First, some rights are truly
universal, such as the right not to be enslaved,42 the right to life43 and the right to be
recognised as a person.44 Second, the universality of some rights only apply in certain
contexts, such as the right to be presumed innocent until proven guilty according to law in a
public trial,45 the right to an effective remedy if ones rights are violated46 or the right to equal
pay for equal work.47 Third, while not entitled to an exclusive set of rights, special categories
of rights purported to protect rights-holders that either meet a certain criterion48 or is
perceived to be particularly vulnerable for human rights abuses exist to highlight their
situation.49 Lastly, it shall be noted that Article 27(1) declares that [e]veryone has the right
freely to participate in the cultural life of the community [].50 However, Article 27(1) is
not a carte blanche for actors to carry out HCP that infringe on the rights and freedoms
contained in the UDHR. Article 27(1) must be read in conjunction with Article 30 which
underlines that [n]othing in this Declaration may be interpreted as implying for any State,
group or person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.51
Proponents of human rights as universally applicable often point to Article 5 of the VDPA,
the outcome document of the 1993 World Conference on Human Rights, which states that

41

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, pp. 119-120

42

UDHR, Article 4

43

Ibid., Article 3

44

Ibid., Article 6

45

Ibid., Article 11(1)

46

Ibid., Article 8

47

Ibid., Article 23(2)

48

Ibid., Article 16

49

Ibid., Article 25(2)

50

Ibid., Article 27(1)

51

Ibid., Article 30

[a]ll human rights are universal, indivisible and interdependent and interrelated.52 The
paragraph goes, however, on to note the [] significance of national and regional
particularities and various historical, cultural and religious backgrounds.53 That is to say,
even if the paragraph calls on States to promote and protect all human rights and fundamental
freedoms [] regardless of their political, economic and cultural systems54, it does not
unequivocally side with a universalist approach to human rights.55 The document also pays
tribute to [] the unique contributions of indigenous people to the development and
plurality of society56 and urges States to [] recognize the value and diversity of their
distinct identities, cultures and social organization.57 In sum, advocates of universalism
should be careful when invoking these instruments as neither the UDHR nor the VDPA
makes an unambiguous stand for this position. Rather the language that navigates between
universalism and cultural relativism is a sign of compromises reached between UN Member
States with different views on human rights. 58

2.1.2 The relative universality of human rights


In his effort to reconcile cultural relativism and the universality of human rights, Donnelly
appeals to what he calls the relative universality of human rights. This position notes that,
[] the universality of human rights is relative to the contemporary world. The particularities of
implementation are relative to history, politics, and contingent decisions. But at the level of the concept as
specified in the Universal Declaration of Human Rights, human rights are universal. The formulation

52

VDPA, para. 5

53

Ibid.

54

Ibid.

55

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 121

56

VDPA, para. 19

57

Ibid., para. 20

58

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 52

10

relatively universal is thus apt. Relatively modifies operates within the boundaries by the universality of
the body of interdependent and indivisible internationally recognized human rights. 59

Human rights are, he argues, relative in three principal interpretations that he labels; legal
universality, overlapping consensus of universality and functional universality. Let us
consider each in turn. International legal universality encompasses the fact that international
human rights treaties enjoy an 88 percent ratification rate.60 However, the mere acceptance to
these instruments as indicated by ratification does not illustrate a universal commitment to
compliance with the rights enshrined in the treaties.61 In this light, domestic regime type62 and
the efficiency domestic judiciaries63 and respect for treaty obligations are two variables that
political scientists examine when they study States respect for human rights treaty
obligations. Thus international legal universality does not encompass universal
implementation, universal enforcement or universal enjoyment.64 Overlapping consensus
universality, Donnelly stated, is underpinned by the notion that champions of seemingly
irreconcilable doctrines may succeed in finding an overlapping consensus on political
conception of justice. The importance of overlapping consensus is profound since it joins
individuals and groups from different religious and political camps under the umbrella of
human rights. They might not agree on the definition, scope or implementation of human
rights but an overlapping consensus illustrates that there is no necessary clash between culture

59

Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013, p. 37

60

Ibid., p. 38

61

Ibid.,, p. 14

62

See for example Poe, S., Tate, N., & Camp, K., Repression of the Human Rights to Personal Integrity
Revisited: A Global Cross-National Study Covering the years 1976-1993 in International Studies Quarterly,
Vol. 43, No. 2, 1999, pp. 291-313; Davenport, C. The Promise of Democratic Pacification: An Empirical
Assessment in International Studies Quarterly, Vol. 48, No. 3, 2004, pp. 539-560; Regan, P., & Henderson, E.,
Democracy, threats and political repression in developing countries: Are democracies internally less violent? in
Third World Quarterly, Vol. 23, No. 1, 2002, pp. 119-136
63

Keith, L., Judicial independence and human rights protection around the world in Judicature, Vol. 85, No. 4,
2002, pp. 195-200; Powell, E., & Staton, J., Domestic Judicial Institutions and Human Rights Treaty
Violations in International Studies Quarterly, Vol. 53, No. 1, 2009, pp. 149-174; Abouharb, R., Moyer, L., &
Schmidt, M., De facto Judicial Independence and Physical Integrity Rights in Journal of Human Rights, Vol.
12, No. 4, 2013, pp. 367-398
64

Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013, p. 38

11

and human rights as members of different cultures have, sometimes for different reasons,
found it advantageous to subscribe to the human rights doctrine through, for example,
ratifications of international human rights treaties. Moreover, overlapping consensus supports
the claim that human rights are founded on multiple cultural, geographical and philosophical
grounds which in turn is promising for furthering international legal universality.65 Functional
universality draws on universal consequences of an increasingly interconnected and
interdependent world in which capitalism and the nation-state are established institutions in
all regions of the world.66 They create new social, economic and political conditions that pose
new threats to human dignity that directly or indirectly affects all humans. In responding to
these universal challenges, human rights have gained a functional universality as a safeguard
for protecting and promoting human dignity. Donnelly argued that this development first
emerged in the west, and as a consequence, the response in the shape of human rights was
first articulated in the in this region.67 However, the continuous impact of increasing global
interconnectedness and interdependences makes the birth place of human rights insignificant
as the location of its cradle does not determine the scope of its legitimacy or validity. 68 Indeed
the United Nations and its human rights machinery proclaim that inherent human dignity is
the trigger for everyones entitlement to all human rights without distinction.69 In sum, these
three elements describe the relative universality of human rights which seeks to illustrate that
there is no inherent tension between universality of human rights and a weak form of
relativism.

65

Ibid., p. 39

66

Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013, p. 41; Freeman, M., Human
Rights. Polity Press: Cambridge, 2012, p. 122
67

Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013, p. 40

68

Donnelly, J., Universal Rights in Theory and Practice. [3rd ed.] Cornell University Press: New York, 2003, p.
70; Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 60
69

See for example United Nations Charter of the United Nations, 1 UNTS XVI, 1945, pp. 2; UDHR, pp. 2, 5,
Article 1,22, 23; ICESCR, Article 13; UNGA, International Covenant on Civil and Political Rights, UNTS, vol.
999, p. 171, 1966, pp. 2,3, (ICCPR) Article 10

12

This theory demonstrates a significant shift in Donnellys scholarship as it clearly


disassociates itself with the harsh criticism of cultural relativism present in his earlier work.70
In fact, I argue that relative universality goes too far in embracing cultural relativism and thus
fails to provide a satisfactory safeguard against HCP. The first element, international legal
universality, only pertains to the level of ratification of international human rights treaties and
does not, as mentioned above, stipulate a universal agreement on the crucial components of
implementation, enforcement and enjoyment of human rights.71 In this light, it is unclear how
this position addresses governments that endorse human rights violating policies and
practices. A political leadership that does not recognise non-discriminatory norms such as
gender equality72 or that refuses to take measures to eliminate cultural customs based on
notions of inferiority of either sex73 will not be held accountable by Donnellys proposal.
Thus it offers little comfort for victims of HCP. Furthermore, the notion of overlapping
consensus universality requires each culture to contain, and thus accept, some common
element of the core of human rights. From this core, a list of human rights must be extracted
that all cultures can subscribe to. To carry any weight, the agreed upon list must
operationalise each right and hold governments responsible for establishing an environment in
which each rights-holder has the capacity to exercise each right.74 However, already in the
first instance, such a list is not likely to address culturally sensitive issues such as HCP, thus
effectively making the list useless.75 This brief examination of key pillars of an approach to
human rights as relatively universal clearly illustrate that it does not provide a satisfactory
safeguard against excesses of cultural relativism; thus it is insufficient to address our concern
of protecting rights-holders from HCP.
70

See for example Donnelly, J., Universal Human Rights in Theory and Practice, [3rd ed.] Cornell University
Press: New York, 2003, pp. 71-72
71

Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013, p. 38

72

ICEDAW, Article 1

73

Ibid., Article 5(a)

74

Griffin, J., On human rights. Oxford University Press: Oxford, 2008, p. 47

75

An-Naim, A., A., Towards a Cross-Cultural Approach to Defining International Standards of Human Rights:
The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment in An-Naim, A., A., [ed.] Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press: Philadelphia,
1992, pp. 20, 27

13

2.1.3 An appeal to the personhood approach


Formulated by James Griffin, the personhood approach to human rights justifies universal
human rights by invoking the notion of human normative agency. A persons normative
agency consists of the ability to first, among a plethora of choices, decide what goods and
values contribute to them leading what they deem a to be a good life and, second, to pursue
these goods and values with a view to incorporating them into their life.76 What constitutes
the inherent dignity of the person is the normative agency to decide on and to pursue a good
life, and human rights are tools for protecting this status. It follows that universal human
rights are limited to human normative agents.77 It is indeed the same appeal to the inherent
worth and dignity of the human person as is to be found in the United Nations Charter78 and
United Nations Declaration of Human Rights.79 According to Griffin,
[a]nyone who has the capacity to identify the good, whatever the extent of the capacity and whatever its
source, has what I mean by a conception of a worthwhile life; they have ideas, some of them reliable, about
what makes a life better or worse. [] And it is the mere possession of this common capacity to identify the
good that guarantees persons the protection of human rights. 80

In the context of human rights he stipulates that agency must be supported by three elements.
First, the human person must enjoy a sufficient level of autonomy to take executive action on
what goods and values to pursue, and second, in carrying out this endeavour, enjoy a
sufficient level of liberty to not be unduly hindered in this pursuit.81 However, what human
rights de facto protect goes beyond these capacities to include protection of the exercise of
76

Griffin, J., On human rights. Oxford University Press: Oxford, 2008, p. 44-45

77

Ibid., p. 50. Griffin writes [w]hat seems to me clear is that many children, as opposed to infants, are capable
of normative agency. [] I should certainly have no doubts about many childrens having rights on the
definition of a child employed in the United Nations Convention on the Rights of the Child: namely, anyone
under legal majority. [] The autonomy of children of only a few years has sometimes to be respected. [] We
should see children as acquiring rights in stages the stages in which they acquire agency. So I am inclined to
conclude that human rights should not be extended to infants, or to patients in an irreversible coma or with
advanced dementia, or to the severely mentally defective. And if they do not extend to them, it is hard to find a
case for extending them to foetuses. Ibid., p. 95
78

United Nations, Charter of the United,1 UNTS XVI, 1945

79

UDHR, pp. 1, 5; Article 1, 22, 23(3)

80

Griffin, J., On human rights. Oxford University Press: Oxford, 2008, p. 46

81

Ibid.

14

autonomy and liberty. The component of exercise is essential as it activates autonomy and
liberty and gives them effective meaning.82 The exercise of rights must here be understood as
including a reasonable likelihood of succeeding in realising the aim of the exercise. This
premise requires governments to comply with positive duties, such as providing proactive
services that support human normative agency, and negative duties, such as refraining from
creating disproportionate and unjustifiable impediments to block our conception and pursuit
of a worthwhile life.83 The exercise of autonomy and liberty enables us to commit informed
choices from what the world has to offer and consequently enjoy the freedom to pursue a
worthwhile life.84 Ultimately, it is this pursuit that is the source of the human dignity that
gives us human rights in the first place.85 In sum, normative agency requires rights-holders to
enjoy certain capacities, such as autonomy and liberty, and the possibility to effectively
exercise them.
The entitlement to human rights protection is derived, Griffin argued, on the basis of being a
human normative agent regardless of what cultural, geographical or societal context we exist
in.86 Responding to cultural relativism criticism of the universality of human rights, he
suggested that the incompatibility of so-called western values of autonomy and liberty, on
one hand, and values championed by other societies, on the other, is exaggerated. The
objectives of autonomy and liberty are not equal to abandonment of social or cultural webs
that link individuals together in communities. The autonomy and liberty advocated for in the
personhood approach are integral components of human normative agency that are crucial for
pursuing a worthwhile life. Nothing in this justification of universal human rights appeals to
cultural imperialism or requires humans to embark on this pursuit isolated from their
community. In corollary, the solidarity between humans that forms the glue of any community
does not infringe on our normative agency. Rather, an informed decision to commit to a

82

Ibid., p. 47

83

Ibid., p. 48

84

Ibid., p. 46

85

Ibid., p. 50

86

Ibid., pp. 49-51

15

community can activate the effective exercise of autonomy and liberty within the community.
In that way, the community can become a vehicle for realising a worthwhile life.87
According to the personhood approach, our right to liberty can only be infringed by other
agents.88 Griffin invokes the example of Afghani Taliban leaders who excessively narrowed
the scope of options available for Afghani women to lead a worthwhile life. Still
autonomously, they could only choose options that the Taliban practice deemed compatible
with their interpretation of an Islamic womans life, leaving many options likely to be
considered choice-worthy by women themselves closed, thus vehemently violating their
human rights. Similarly, cultures more often than not include practices that pose prohibitions
and requirements manifested in various ways that could be abolished, were it not for present
generations imposing them.89 Consider for example the cultural sensitive issue of same-sex
activities. According to the International Lesbian, Gay, Bisexual, Trans and Intersex
Association (ILGA), state-sponsored laws in at least seven countries sentence individuals
involved in such activities to the death penalty. Laws in 78 countries proscribe imprisonment
between fourteen years and life for homosexual acts.90 In these states, a majority of same-sex
couples cannot lead their life on the same terms as heterosexual couples. They are constantly
under threat of persecution should any level of their personal relations be exposed. Their
entitlement as human normative agents to some of the least easily substituted ends of human
life is thus effectively curbed.91 It follows that HCP, as well as state-persecution, severely
infringe on necessary means to pursue any plausible conception of a worthwhile life including
education, basic health and minimum material provisions to the extent needed to live as a
normative agent.92 As human normative agency is the condition that our human rights and
87

Ibid., pp. 133-134

88

Ibid., p. 161

89

Ibid.

90

Itaborahy, P., L., & Zhy, J., State-Sponsored Homophobia: A world survey of laws: Criminalisation,
protection and recognition of same-sex love. International Lesbian, Gay, Bisexual, Trans and Intersex
Association: 2014 [Online] http://old.ilga.org/Statehomophobia/ILGA_SSHR_2014_Eng.pdf [Retrieved 201408-07]
91

Griffin, J., On human rights. Oxford University Press: Oxford, 2008, pp. 163-164

92

Ibid., p. 162

16

their protection derive from, a culture that infringes on the normative agency of rights-holders
is incompatible with universal human rights. Consider for example the list of HCP included in
the report of the UN Expert Group Meeting on Good Practices in Legislation on Harmful
Practices Against Women referred to above.93 Through the lens of a personhood approach to
human rights, clearly all of these practices violate the autonomy and liberty of human
normative agency. 94
I argue that, while offering a compelling justification for universal human rights, the
personhood approach also provides satisfactory protection for right-holders against HCP.
Indeed, the personhood approach demonstrates that human rights protect autonomy and
liberty which is in turn imperative for humans to pursue a worthwhile life that contains more
than the daily struggle for survival. By effectively exercising our rights we can expand our
horizons, gain new knowledge and protect ourselves from falling victim of paucity of options
which ultimately would threaten our liberty.95 However, as we shall see, the chief departure of
criticism against universal human rights emerges from accusations of them being a western
moral doctrine96 and, thus, failing to appreciate the significance of cultural relativism.97 In the
next chapter, after a brief introduction to cultural relativism, we will return to these charges.

93

United Nations Division for the Advancement of Women and United Nations Economic Commission for
Africa, Good Practices in legislation on harmful practices against women. 2009, pp. 21-27
94

Griffin, J., On human rights. Oxford University Press: Oxford, 2008, p. 44

95

Ibid., p. 47

96

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 58-59
97

An-Naim, A., A., Towards a Cross-Cultural Approach to Defining International Standards of Human Rights:
The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment in An-Naim, A., A., [ed.] Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press: Philadelphia,
1992, p. 20

17

2.2 Cultural Relativism


An array of government representatives, human rights practitioners and scholars come
together under the banner of cultural relativism in their refutation of international mechanisms
mandated to enforce and hold governments accountable for their human rights duties by
referral to divergent cultural, ideological or social traditions.98 They are united in their
assertion that different cultures necessarily adopt different cultural perspectives. In the context
of human rights, such relativism is manifested in different interpretations of how human rights
should be promoted, protected and implemented. Thus, far from being universally accepted,
this strand holds human rights to be a relative concept.99 According to many advocates of
cultural relativism, international human rights instruments and mechanisms enshrined in the
United Nations system are born out of a European tradition that rests upon liberalism and
democratic traditions. As a consequence the current human rights doctrine overemphasises
individual and justiciable civil and political rights while it allegedly neglects economic, social
and cultural rights and States interests.100
Different layers of cultural relativism generally questions the universal foundations and
legitimacy of human rights. Radical relativism stipulates, according to Donnelly, that culture
is the only source which can give validity and legitimacy to human rights.101 Strong cultural
relativism blends relativism and universalism with a significant emphasis on the former and
holds that culture is the chief source of the validity of a moral right. It presumes that human
rights, social practices, values and moral rules are culturally determined.102 Finally, weak
cultural relativism includes various blends of relativism and universalism. At the relativist
endpoint it holds that culture may be one of several important sources of validity of human
rights and that the inherent relativism of human nature, communities and rights serves as a
98

Donoho, D., Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, in 27
Stanford Journal of International Law, Vol. 27, 1990, p. 349
99

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 56-60
100

Donoho, D., Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, in 27
Stanford Journal of International Law, Vol. 27, 1990, p. 350
101

Donnelly, J., Cultural Relativism and Universal Human Rights, in HRQ, Vol. 6, No, 4,1984, p. 400

102

Ibid., p. 401

18

safeguard on potential excesses of universalism. At the opposite end of the continuum103, only
a minimum of local variation is embraced and human rights must be promoted and protected
for all without distinction in compliance with Article 1(3) of the UN Charter.104 It is indeed
true that since not all cultural practices sufficiently apply with human rights105, as a defender
of human rights to which all human are entitled, without distinction, it is impossible to be
supportive of all cultural features of every existing culture.106 However, it must be flagged
that an opposition to these strands is not incompatible with respect for cultural diversity.
Indeed, the opposition is formulated against HCP, not cultural diversity as such. As
exemplified above by UDHR and the VDPA, almost all international human rights
declarations, covenants, conventions and treaties promote and protect cultural diversity to
some degree.107
Unfolding the concept of cultural relativism, Andrew Fagan identified two interrelated camps
that from different standpoints denounce human rights as universally applicable. First,
proponents of what he labelled descriptive relativism have argued that moral beliefs, values
and practices are context and time dependent. As a consequence, it is impossible to extract a
single, universal, moral code, such as universal human rights, that all humans can subscribe
to. Prescriptive relativism, then, has one negative and one positive dimension. The
former holds that morality is unable to foster universally valid moral facts, such as universally
valid human rights. They argue that morality is bound to nurture disparate and incompatible
moral beliefs, values and practices. Positive prescriptive relativism holds that the lack of a
universal moral code is, in fact, in itself, a moral good. Thus results of moral diversity, for
example cultural relativism in relation to human rights, are something inherently good and
should be promoted.108
103

Ibid.

104

United Nations , Charter of the United Nations, 1945, 1 UNTS XVI, 1945, Article 1(3)

105

See for example United Nations Division for the Advancement of Women and United Nations Economic
Commission for Africa, Good Practices in legislation on harmful practices against women. 2009, pp. 21-27
106

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 127

107

See for example ICESCR, Article 15; VDPA, para. 5

108

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 54

19

In the same vein, Douglas Donoho recognised three claims launched by the positions
identified by Fagan. The first claim is grounded in descriptive relativism and purport that as a
result of different cultural, political and social traditions around the world, various value
system and corresponding moral judgement frameworks exist. This claim has the human
rights implication that certain values, such as the right to equal protection of the law between
men and women,109 which are protected and promoted in human rights instruments, are
inappropriate in certain cultural settings.110 Building on the first, the second claim is grounded
in prescriptive relativism and purport that the existing plethora of moral value systems and
moral judgement frameworks has no validity or legitimacy outside their social
environment.111 This claim has the human rights implication that the interpretation and
implementation of human rights must ultimately comply with the cultural setting of any given
society.112 The third and ultimate claim builds on the two previous propositions and argues
that no single objectively justifiable moral standards exists that can justify the superiority of
one moral value system over another.113 In a human rights context this means that [t]he
appreciation of our own ethnocentricity should lead us to respect the ethnocentricity of
other.114 In this light, it has been argued that HCP should be exempt from external review.115
This view is, of course, inherently incompatible the universality of human rights as it offers
inadequate protection from practices that vehemently violate international human rights law.
A justification of universal human rights grounded in the personhood approach welcomes

109

See for example ICEDAW, Article 1; ICESCR Article 3; ICCPR, Article 26

110

Donoho, D., Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, in 27
Stanford Journal of International Law, Vol., 27, 1990, p. 353
111

Ibid., pp. 353-354

112

Ibid., p. 354

113

Ibid.

114

An-Naim, A., A., Toward a Cross-Cultural Approach to Defining International Standards of Human Rights:
The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment in An-Naim, A., A., [ed.] Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press: Philadelphia,
1992, p. 24
115

Donoho, D., Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, in 27
Stanford Journal of International Law, Vol. 27, 1990, pp. 354

20

cultural diversity116 but does not condone of all its manifestations as HCP, for example, are
fundamentally incompatible with supporting universal human rights.117

2.2.1 Ethnocentricity
The element of ethnocentricity in the third claim is a common building block in the charge
against universal human rights. In outlining their criticism, scholars have often focused on the
origin of human rights which they insist is to be found in the project of western liberal
democratic state building. Both Makau Wa Mutua and Abdullahi AnNaim have in their work
aspired to avoid ethnocentric prejudices while championing human rights. The former
proposed that,
[] human rights and Western liberal democracy are virtually tautological. Although the two concepts seem
different from a distance, one is in fact the universalized version of the other; human rights represent the
attempted diffusion and further development at the international level of the liberal political tradition. 118

He noted that human rights are in fact nothing more than the [] moralized expression of a
political ideology.119 Thus, he claimed [] the specific philosophy on which the current
universal and official human rights corpus is based is essentially European. This
exclusivity and cultural specificity necessarily deny the concept of universality.120 Drawing
on what he argued to be the partisan political agenda of human rights121, he held that the
current human rights doctrine flies in the face of cultural diversity.122 I, however, suggest that
this is empirically untrue. Rather, as noted above, international human rights instruments and
treaties that constitute the doctrine welcome cultural diversity while at the same time serve as
116

Griffin, J., On human rights. Oxford University Press: Oxford, 2008, pp. 133-134

117

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 127

118

Mutua, M., The Ideology of Human Rights, in Virginia Journal of International Law, Vol. 36, 1996, pp. 592

119

Ibid.

120

Ibid., p. 592-593

121

Ibid., p. 591

122

Ibid., p. 595

21

a safeguard against potential excess of cultural relativism.123 Nevertheless Mutua stated that it
is impossible for the alleged western overemphasis on moral individualism, individual rights
and civil and political rights124 to make sense in African States since their development is
fundamentally different from the European liberal notion of the relationship between the State
as a duty-bearer and the individual as a rights-holder.125 In the words of Mutua, the
contemporary [] individualist, narrow formulation of human rights is not a universal
doctrine applicable everywhere without regard to time and place.126
Why, then, he asked rhetorically, should it be assumed that an individualistic rights
perspective is superior to a community-oriented approach to human rights as he claims the
African approach to be?127 Regrettably Mutua failed to define which actors that assume an
allegedly European approach to human rights to be superior to an allegedly African one.
However, a benevolent interpretation could only assume that the question is directed to
advocates of a western universalist interpretation of human rights. This interpretation gains
strength from his proposal that, even though many of its claims are universally valid, the
current human rights vehicle is denied its completeness due to its origin in western liberal
traditions.128 Thus according to Mutua, in order for human rights to not further develop as a
megaphone for western values and ideals, this tradition must necessarily be married with
allegedly African values of individuals duties to the community and State in order to
complete the circle.129 According to Fagan, this ecumenical approach to human rights would,
much like Donnellys theory of universal overlapping consensus,130 have to [] assimilate
and combine a number of different cultural and religious elements in reconstructing a new
123

See for example ICESCR, Article 15(a); ICEDAW, Article 5; UDHR, Article 27(1), VDPA, para. 5

124

Mutua, M., The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of
Duties in Virginia Journal of International Law, Vol. 35, 1995, pp. 341, footnote 7
125

Ibid., p. 344

126

Ibid., p. 341

127

Ibid., p. 363

128

Ibid., p. 344

129

Ibid., p. 364

130

Donnelly, J., International Human Rights, Westviews Press: Boulder, 2013, p. 39

22

understanding of the basis and scope of human rights.131 Practically, to achieve Mutuas
universally valid conception of human rights, and Donnellys universal overlapping
consensus, it would require representatives from various cultures and traditions to engage in
the rather politically and administratively unrealistic process of comparing notes, negotiating
positions and actually establish consensus on the content of human rights.132
An-Naims suggestion on how to eliminate ethnocentricity builds on cross-cultural dialogue
which, if successful, could establish universal cultural legitimacy of human rights.133 He
insisted that it is the lack of cultural legitimacy that halts universal acceptance of human rights
and also what constitutes the root cause for continued human rights violations.134 In doing so,
he noted that people in general are more prone to adhere to normative propositions if they
perceive them as arising from the culture they themselves subscribe to as opposed to
propositions championed by external forces.135 From this viewpoint An-Naim outlined his
two-pronged theory on cross-cultural dialogue which aims at establishing consensus across
cultures on international human rights standards. It is based on the notion that despite the
inherent diversity between individuals and societies, they share certain fundamental interests,
concerns and values that could be employed as a point of departure for a unified culture of
human rights.136 First, the process demands that every culture engage in internal discourse
with a view to establish internal [] enlightened perceptions and interpretations of cultural
values and norms.137 It is vital, he underscored, that this process is allowed to take place
within the framework of the specific terms that each culture adheres to. Internal negations on
131

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 65
132

Mutua, M., Human Rights: A Political and Cultural Critique. University of Pennsylvania Press: Philadelphia,
2002, p. 74
133

An-Naim, A., A., Towards a Cross-Cultural Approach to Defining International Standards of Human
Rights: The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment in An-Naim, A., A., [ed.]
Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press:
Philadelphia, 1992, p. 21
134

Ibid., p. 19

135

Ibid., p. 20

136

Ibid., p. 21

137

Ibid.

23

internal values and norms must not be interfered with by external actors.138 Instead internal
discourse must be underpinned by good will, mutual respect and an unbiased approach to
other cultures. That is, the principle of reciprocity must necessarily be extended to all human
beings and not just to those confined to ones own culture.139 It is encouraging to note that
An-Naim underlined that influential actors are likely to maintain and reaffirm perceptions
and interpretations of cultural values and norms that suit their interests.140 Naturally,
monopolisation of internal discourse by elites would undermine its purpose. Thus he
emphasise the importance of disadvantaged individuals and groups to challenge the elites
manipulation of cultural manifestations.141 However, simply raising this crucial issue that
potentially risks overthrowing the legitimacy, and thus the whole process, of cross-cultural
dialogue without offering any tools for the disadvantaged to employ, is insufficient
scholarship. As Freeman highlighted, if women are refused the right to participate in public
life, how can women then be expected to contribute to internal discourse?142 Simply stating
that it is an internal affair that representatives of alien cultures must not interfere with is of
little assistance.143
AnNaim stressed that internal discourse must not shy away from conflicts between the
internal culture and human rights. Rather, such potentially sensitive issues must be surfaced
and debated in all cultures to facilitate honest cross-cultural dialogue.144 The process of
internal discourse is achieved when each culture has reached an adequate level of internal
138

Ibid., p. 27

139

Ibid., p. 28

140

An-Naim, A., A., Towards a Cross-Cultural Approach to Defining International Standards of Human
Rights: The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment in An-Naim, A., A., [ed.]
Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press:
Philadelphia, 1992, p. 20
141

Ibid., p. 28

142

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 128

143

An-Naim, A., A., Towards a Cross-Cultural Approach to Defining International Standards of Human
Rights: The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment in An-Naim, A., A., [ed.]
Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press:
Philadelphia, 1992, p. 20
144

Ibid.

24

legitimacy.145 Unfortunately, what constitutes an adequate level and who is to decide when
this level is reached, are question that he leaves unanswered. However, it is reasonable to
assume that what An-Naim had in mind is something similar, although here in an internal
context, to Mutuas suggestion above of comparing notes and negotiating positions. To
increase cultures internal adequate level of legitimacy, he calls on human rights scholars and
practitioners to advocate cross-cultural legitimacy.146 In relation to the modalities of this
process, it is crucial that internal discourse flourish simultaneously in all cultures to facilitate
a smooth transition from internal discourse to cross-culture dialogue.147 This second and final
part of the process strives to establish an agreement between individuals and groups from
different cultures on the meaning, scope and methods of realising human rights on the
ground.148 Finally he urges us to be modest in our expectations of cross-cultural dialogue and
to pursue [] the maximum possible degree of agreement at whatever level it can be
achieved.149 In other words, he is himself concerned with what can be achieved through
cross-cultural dialogue in terms of bolstering the legitimacy of human rights.

2.2.2 The unfulfilled promise of Cultural Relativism


While An-NaIm and Mutua offered suggestions on how to eradicate ethnocentricity, both
theses encounter problematic elements. Besides anchoring their appeals in the flawed idea of
universal overlapping consensus, Mutuas reoccurring references to allegedly African and
European cultures offer too simplistic accounts of the rich cultural landscape within these
regions. Quite naturally, as manifested by An-Naims call for internal cultural discourse, one
culture, perceived as one entity, does not by definition internally agree on what cultural
elements that in fact constitute it. Mutuas oversimplistic categorisation is thus, I argue,
ultimately more harmful than helpful in moving the human rights discourse away from
145

Ibid., p. 21

146

Ibid.

147

Ibid.

148

Ibid.

149

Ibid., p. 29

25

ethnocentricity. In this context Donnelly has accused supporters of the claim that the
geographical origin of human rights necessarily determines their legitimate geographical
scope of subscribing to the so-called genetic-fallacy; a false conclusion drawn from a true
premise.150 He holds, and I agree, that [h]uman rights are too important to be rejected or
accepted on the basis of its origin.151 Mutuas rule that [p]roper human rights ought to
assume that all cultures are equal152 is of course impossible for universal human rights
defenders to adhere to.
While I agree with Fagan that [a] commitment to human rights must not become
synonymous with a mere proselytizing of partial values and ideals153, not all cultural
practices can be applauded by human rights supporters. As Freeman acknowledged, it is
incompatible to champion human rights while at the same time pay tribute to cultural
practices that violate human rights.154 Here the distinction must be clear between, first,
rejecting HCP, which is necessary in defence of human rights, and second, being, in a general
sense, appreciative of cultural diversity. In this light, it is alarming that Mutua flagrantly fail
to reject the obvious human rights violating155 practice of FGM. Instead he defended this
gender-discriminatory practice by referring to it as a harmonisation of individual interests
with values of the surrounding community.156 Any defense of human rights as universal, and
certainly one based on the personhood approach, is fundamentally incompatible with such
150

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 60
151

Donnelly, J., Universal Rights in Theory and Practice. [3rd ed.] New York: Cornell University Press, 2003, p.

70
152

Mutua, M., Human Rights: A Political and Cultural Critique. University of Pennsylvania Press: Philadelphia,
2002, p. 109
153

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 66
154

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 127

155

ICESCR, Article 14; CESCR, General Comment 14, The right to the highest attainable standard of health
(Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.6 at 85, (CESCR, General Comment 14) 2003, paras. 22, 35
156

Mutua, M., The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of
Duties in Virginia Journal of International Law, Vol. 35, 1995, p. 363

26

HCP and must serve as a check on the flagrant excess of relativism in such abuses of human
rights.
It is moreover regrettable that neither An-Naim nor Mutua dealt in an adequate way with
societal structures that allow dominant groups and political elites to set the cultural relativist
agenda. These segments of the populace frequently invoke cultural relativism as an
ideological tool combined with accusations of ethnocentricity to undermine the inherent
universal dimension of human rights, thereby disallowing disenfranchised individuals and
groups to empower themselves through access to universal human rights.157 Misused and
misrepresented by these stakeholders, culture and religion can be invoked to systematically
tyrannize their own members which values they claim to represent and protect against
external interference.158 While mindful of potentially undesired effects of ethnocentricity in
the promotion and protection of universal human rights, it is naive to assume that all cultural
practices are conducive for its entire population or that simply will be HCP will be erased
with time. In addition, it is vital to bear in mind that simply leaving a culture is not always an
option.159 Therefore it is justified to express concern about an environment where,
[g]overnments and intellectual elites often act as gatekeepers, offering an official version of the culture to
the outside world. We have, however, reasons to be skeptical of tis claims of elites to speak for the people.
We can hear the people only if they have a secure set of rights. If some people are, for example, not free from
arbitrary arrest, or if women are excluded from public life, we cannot know whether the culture of the people
is being truly represented. Respect for cultural diversity, therefore, which is often represented as a threat the
universality of human rights, may, quite to the contrary, require robust implementation of those rights. 160

157

Howard, R., Human Rights in Commonwealth Africa. Rowman & Littlefield: New Jersey, 1986, p. 17

158

Fagan, A., Human Rights: Confronting Myths and Misunderstandings. Edward Elgar Publishing Ltd:
Cheltenham, 2009, p. 73
159

Ibid., p. 74

160

Freeman, M., Human Rights. Polity Press: Cambridge, 2012, p. 128

27

3. Cultural Relativism and Universalism in the United Nations


The objective of this chapter is to move the debate to the setting of the United Nations human
rights machinery. The first segment explores how the Council has addressed HCP and the
second segment how CEDAW and CESCR have addressed these practices. The distinction
invoked here is based on the origins of the bodies. Charter-based bodies, such as the Council,
derive from the UN charter and its mandate thus allows them to hold all UN Member States
accountable for any form of human rights violations. Treaty-based bodies, on the other hand,
find their mandate in the corresponding international human rights treaty. These bodies are
restricted to monitoring treaty compliance by States which have become party to the
corresponding treaty through ratification or accession.161

3.1. The Human Rights Council


The Council is an inter-governmental body which while adopting resolution, does not issue
legally binding recommendations to United Nations Member States.162 In the United Nations
General Assembly resolution that established the Council, the preamble reaffirmed the
language of the VDPA [] that all human rights are universal, indivisible, interrelated,
interdependent and mutually reinforcing, and that all human rights must be treated in a fair
and equal manner, on the same footing and with the same emphasis.163 It also noted that all
States regardless of their cultural system have an obligation to promote and protect human
rights.164 In this light, the founding resolution sets out that the [] Council shall be
responsible for promoting universal respect for the protection of all human rights and
fundamental freedoms for all, without distinction of any kind []165 Notably, it goes on to
161

Clapham, A., United Nations Charter-Based Protection of Human Rights in Krause, C., & Scheinin, M.,
[eds.] International Protection of Human Rights: A Textbook. Gummerus Printing: Jyvskyl 2009, p. 79
162

Bilder, R., An Overview of International Human Rights Law in Hannum, H., Guide to International Human
Rights Practice, [4th ed.] Transnational Publishers: New York, 2004, p. 8; UNGA Resolution, Human Rights
Council, A/res/60/251, 2006, pp. 3
163

VDPA, pp. 5

164

Ibid.

165

UNGA resolution, Human Rights Council, A/res/60/251, 2006, pp. 2; para. 2

28

affirm that UN Member States elected to the Council shall uphold the highest human rights
standards and, to this end, Member States are urged to take into account candidates human
rights work.166 In order to examine if the CEDAW and CESCR have adopted a uniform
approach to HCP, it is appropriate to scrutinize the position of States in relation to include
potentially culturally sensitive thematic resolutions. Let us consider them each in turn.

3.1.1. Traditional values


Tabled by Belarus, China, Russia, Singapore and Sri Lanka at the twelfth Council session in
2009, the resolution Follow-up and Implementation of the Vienna Declaration and
Programme of Action: Promoting human rights and fundamental freedoms through a better
understanding of traditional values of human kind recognised that all cultures and religions
share common values belonging to humankind that contributes to the advancement of human
rights.167 In this light, the resolution requested the High Commissioner to convene a workshop
on how [] a better understanding of traditional values of human kind underpinning
international human rights norms and standards can contribute to the promotion and
protection of human rights and fundamental freedoms.168 The resolution was adopted with 26
votes in favour, 15 against and 6 abstentions. The voting process demonstrated a clear divide
between a majority of votes against coming from European and western States and a
majority of votes in favour coming from African and Asian states.169

166

Ibid., para. 8,9

167

United Nations Human Rights Council resolution (UNHRC), Promoting human rights and fundamental
freedoms through a better understanding of traditional values of human kind, A/HRC/12/L.13/Rev.1, 2009, pp.
5
168

Ibid., para. 1

169

UNHRC, Promoting human rights and fundamental freedoms through a better understanding of traditional
values of human kind, A/HRC/12/21, 2009 [In favour: Angola, Bahrain, Bangladesh, Bolivia (Plurinational State
of), Burkina Faso, Cameroon, China, Cuba, Djibouti, Egypt, Gabon, India, Indonesia, Jordan, Kyrgyzstan,
Madagascar, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South
Africa, Zambia; Against: Belgium, Chile, France, Hungary, Italy, Japan, Mauritius, Mexico, Netherlands,
Norway, Republic of Korea, Slovakia, Slovenia, United Kingdom of Great Britain and Northern Ireland, United
States of America; Abstaining: Argentina, Bosnia and Herzegovina, Brazil, Ghana, Ukraine, Uruguay.]]

29

In the workshop that followed, facilitated by financial support from Russia,170 the High
Commissioner clarified in her opening statement that not all traditions were in line with
human rights and that actors invoking the discourse of traditional values with a view to erode
the universal authority of human rights must be rejected.171 Intervening during the workshop,
Egypt stressed that traditional values must not be confused with harmful practices which had
to be tackled within societies.172 Cuba underscored that it was crucial to take culture and
tradition into account as they underpinned every legal system,173 while Ireland highlighted
that traditions must not be employed to justify human rights abuses. The Irish representative
argued that breaking with traditions has furthered human rights for example in the field of
womens human rights.174
The Netherlands warned against narrowing the discussion to religious traditions which
simplified the foundations of individuals identities. In addition, the State doubted that
traditions by definition were conducive for advancing the enjoyment of all human rights for
all humans. Indeed, the Netherlands pointed to the lack of a clear differentiation between
harmful traditional practices and traditional values which disallowed traditional values to
achieve a legal meaning.175 This sentiment was reiterated by the United States (US) who
argued that what constitutes traditional values is not defined in a satisfactory way. The term
could undermine the universality of human rights instruments, in particular in relation to
vulnerable groups, said the State representative, who emphasised that traditional values have
been invoked to oppress lesbian, gay, bisexual and transsexual individuals and reminded the
Council that slavery and marginalisation of women were once traditions.176 Belgium, taking
the floor on behalf of the European Union (EU), explained that the EU had voted against the
170

United Nations Human Rights Council, Report of the United Nations High Commissioner for Human Rights:
Workshop on traditional values of humankind, A/HRC/16/37, 2010, para. 2
171

Ibid., para. 5

172

Ibid., para. 63

173

Ibid., para. 21

174

Ibid., para. 22

175

Ibid., para. 40

176

Ibid., para. 42

30

resolution that resulted in the workshop chiefly because the notion of traditional values was
too vague and had a negative connotation. However, when traditional values bolstered human
rights, such as cultural and indigenous peoples rights, they deserved protection by human
rights law.177 At the other end of the continuum, China stated that the concept of human rights
should not be monopolised by a few countries and that the universality of human rights must
work in parallel with traditional values of countries.178 The outcome report of the workshop
concluded that it was unwarranted to make ill-defined and evolving traditional values the
standard for human rights.179
In conflict with the universality of human rights, some States continued to push for traditional
values during the Councils sixteenth session. Demonstrating the same divide among Member
States as the previous resolution, Promoting human rights and fundamental freedoms through
a better understanding of traditional values of humankind was adopted by vote of 24 in
favour, 14 against and 7 abstentions.180 The resolution welcomed the workshop and affirmed
that a better understanding of traditional values of dignity, freedom and responsibility enhance
human rights.181 In an unconvincing move to define traditional values it also noted that the
family, community, society and educational institutions are crucial to uphold and transmit
these values.182 In this view, the resolution requested the Councils Advisory Committee to
prepare a study on how such an understanding could further promotion and protection of
human rights.183 In the explanation of votes that followed the adoption, US based its vote
177

Ibid., para. 60

178

Ibid., para. 61

179

Ibid., para. 70

180

UNHRC, Promoting human rights and fundamental freedoms through a better understanding of traditional
values of human kind, A/HRC/RES/16/3, 2011 [In favour: Angola, Bahrain, Bangladesh, Burkina Faso,
Cameroon, China, Cuba, Djibouti, Ecuador, Ghana, Jordan, Kyrgyzstan, Malaysia, Maldives, Mauritania,
Nigeria, Pakistan, Qatar, Russian Federation, Saudi Arabia, Senegal, Thailand, Uganda, Zambia; Against:
Belgium, France, Hungary, Japan, Mauritius, Mexico, Norway, Poland, Republic of Korea, Slovakia, Spain,
Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America Abstaining:
Argentina, Brazil, Chile, Guatemala, Republic of Moldova, Ukraine, Uruguay]
181

United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms
through a better understanding of traditional values of human kind, A/HRC/16/L.6, 2011, op. 3
182

Ibid., para. 4

183

Ibid., para. 6

31

against on the concern that traditional values, lacking reference to human rights law,
undermine the universality of human rights to the detriment of vulnerable groups.184 While
stating that it would not accept a move towards relativism in human rights, the Maldives
voted in favour since it found the resolution compatible with the universality of human
rights.185 The EU said that traditional values at worst encompass harmful practices and
principles in conflict with universal human rights. Therefore the representative argued that no
further elaboration on traditional values was necessary in the Council.186
The preliminary study was written by the Russian member of the Advisory Committee,187
Vladimir Kartashkin, who at the outset of the study acknowledged the lack of a definition of
traditional values of humankind.188 Therefore it is remarkable that he stated that [a]ll
international human rights agreements, whether universal or regional, must be based on, and
not contradict, the traditional values of humankind. If this is not the case, they cannot be
considered valid.189 However, Kartashkin failed to give any support for this rather
contentious position, which indeed was made impossible since, as he himself declared, there
is no accepted definition of traditional values.190 In another controversial move, he claimed

184

United Nations Human Rights Council, 16th session, L.6 Traditional Values, U.S explanation of vote, March
23, 2011 [Online]
http://extranet2.ohchr.org/Extranets/HRCExtranet/portal/page/portal/HRCExtranet/16thSession/DraftResolutions
/AHRC16L.6/L-6-United%20States.pdf [Retrieved 2014-08-19]
185

United Nations Human Rights Council, 16th session, L.6 Traditional Values, Statement After Vote by Deputy
Permanent Representative of the Maldives, March 23, 2011 [Online]
http://extranet2.ohchr.org/Extranets/HRCExtranet/portal/page/portal/HRCExtranet/16thSession/DraftResolutions
/AHRC16L.6/L-6-Maldives%20after%20the%20vote.pdf [Retrieved 2014-08-19]
186

United Nations Human Rights Council, 16th session, Statement by H.E. Ambassador Andras Dekany,
Permanent Representative of Hungary to the United Nations Office in Geneva on behalf of the European Union,
March 3, 2011 [Online] http://www.scribd.com/doc/237203667/Tv1Item2-GD-Hungary-on-Behalf-EU
[Retrieved 2014-08-19]
187

United Nations Human Rights Council, Advisory Committee, Eight session, Preliminary Study on promoting
human rights and fundamental freedoms through a better understanding of traditional values of humankind,
A/HRC/AC/8/4, 2011, para. 4
188

Ibid., para. 6

189

Ibid., para. 75

190

Ibid., para. 6

32

that the individual must act responsible in relation to the State and suggested that human
rights are conditional upon such behaviour.191
A revised edition followed since the Advisory Committee, after considering Mr. Kartashkins
study, deemed it necessary to reflect on both negative and positive impacts of traditional
values on human rights.192 Disassociating itself with the first study, the new draft crucially
stated that [a]s a norm of international law, responsibility refers not to the individual as a
rights-holder, but to the State as a duty-bearer. The State is responsible for promoting and
protecting human rights for all persons.193 It argued that too much focus on individual
responsibility in human rights law is not beneficial194 since human rights are inherent in all
humans without distinction of any kind and not conditional upon responsible behaviour.195
This study included a new subsection on the negative impacts of traditional values. It
confirmed that what constitutes,
[] traditional values were highly subjective and dependent on societal power structures. Tradition is
often invoked to justify maintaining status quo, failing to take into account the reality that traditions, cultures
and social norms have always evolved and will continue to change with time; a human rights-based
approach, by contrast, often requires changes to the status quo in order to ensure compliance with
international standards. Those who benefit most from the status quo are more likely to appeal to tradition to
maintain power and privilege, and also to speak on behalf of tradition, while those most marginalised and
disenfranchised have the most to lose from a traditional values approach to human rights.196

It also noted that families, in various forms,197 may not only transmit positive but also
negative values in conflict with human rights such as discriminatory attitudes against

191

Ibid., para. 40

192

United Nations Human Rights Council, Advisory Committee, Eight session, Preliminary Study on promoting
human rights and fundamental freedoms through a better understanding of traditional values of humankind,
A/HRC/AC/9/2, 2012, para. 6
193

Ibid., para. 25

194

Ibid., para. 30

195

Ibid., para. 31

196

Ibid., para. 41

197

Ibid, para. 16

33

vulnerable groups.198 The study concluded that only cultural features that are consistent with
human rights should be promoted.199
The most recent attempt to entrench traditional values as a parallel doctrine to human rights is
manifested by the resolution Promoting human rights and fundamental freedoms through a
better understanding of traditional values of humankind: best practices. Displaying the same
divide among UN Member States as the two previous resolutions on the topic, it was adopted
with 25 votes in favour, 15 against and 7 abstentions.200 It requested the OHCHR to collect
information from stakeholders on best practices in the application of traditional values as a
driver for human rights.201 Contributing to the report, the EU refused to provide examples of
best practices but highlighted that contrary to human rights which are universal and codified
in law, traditional values are fundamentally subjective.202 Brunei Darussalam stated that it
was vital to place emphasis on the entitlement to enjoyment of human rights for all without
distinction.203 According to Guatemala, culture and traditions should never be allowed as a
pretext for justifying violations of minority rights.204 Honduras echoed this position and
argued that traditional values could never legitimise practices that violated human dignity.205
Indonesia shared their practice of tackling discriminatory traditional values by integrating
positive traditional values in all levels of education through human rights curricula.206
Drawing on the importance of the family, Jordan described how an amendment to their
198

Ibid., para. 61

199

Ibid., para. 80

200

UNHRC, Promoting human rights and fundamental freedoms through a better understanding of traditional
values of humankind: best practices, A/HRC/RES/21/3, 2012
201

UNHRC, Promoting human rights and fundamental freedoms through a better understanding of traditional
values of humankind: best practices, A/HRC/RES/21/L.2, 2012, para. 6
202

United Nations Human Rights Council, Report of the United Nations High Commissioner for Human Rights:
Summary of information from States Members of the United Nations and other relevant stakeholders on best
practice in the application of traditional values while promoting and protecting human rights and upholding
human dignity, A/HRC/24/22, 2013, para. 3
203

Ibid., para. 7

204

Ibid., para. 8

205

Ibid., para. 9

206

Ibid., para. 12

34

constitution considered the family as the chief building block of the community.207 States
including Pakistan208, Oman209 and Qatar210 elaborated on how several human rights could be
found in the teachings of Islam and how a correct understanding of this religion could further
human rights. Spain insisted that traditional values could not negate the universality of human
rights which all humans regardless of where they resided were entitled to.211 The report
concluded that several states found that some traditional values were in line with human rights
and indeed provided the foundation for their universal application,212 while others expressed
concern about traditional values being employed as a tool for undermining human rights, in
particular for discriminating against disadvantaged individuals and groups.213

3.1.3. Sexual Orientation and Gender Identity


Adopted with a vote which demonstrated a now familiar divide, the resolution Human Rights,
Sexual Orientation and Gender Identity was tabled by Brazil and South Africa at the
Councils seventeenth session. With 23 votes in favour, 19 against and 3 abstentions,214 the
resolution summoned the Council to a panel discussion on the findings contained in the High
Commissioners report215 on the topic.216 Speaking on behalf of the EU, Hungary welcomed
the resolution that in their view, far from creating new rights, affirmed the right not to be

207

Ibid., para. 14

208

Ibid., para. 17

209

Ibid., para. 18

210

Ibid., para. 21

211

Ibid., para. 23

212

Ibid., para. 84

213

Ibid., para. 84

214

UNHRC, Human rights, sexual orientation and gender identity, A/HRC/RES/17/19, 2011

215

OHCHR, Report of the United Nations High Commissioner for Human Rights, Discriminatory laws and
practices and acts of violence against individuals based on their sexual orientation and gender identity,
A/HRC/19/4, 2011, paras. 81-85
216

UNHRC, Human rights, sexual orientation and gender identity, A/HRC/RES/17/L.9/Rev.1, 2011

35

discriminated against on basis of SOGI.217 Taking the opposite position, Pakistan addressed
the Council on behalf of the Organization of the Islamic Conference (OIC). It expressed
concern over the resolution attempting to establish new notions to the Council that were not
anchored in human rights law and was disappointed that the text did not consider cultural
specificities as enshrined in the VDPA.218 The Nigerian representative argued that more than
90 percent of the African people were against the resolution.219 According to Saudi Arabia, it
was inappropriate to impose values that were counter to Sharia in Islam.220 After the adoption
of the resolution, Mauritania explained its vote against the resolution by stating that the text,
contrary to furthering human rights, contributed to the dehumanisation of human beings.221
Unsurprisingly the divide among States on the topic widened during the panel discussion.
Employing the same language as States that opposed resolutions on traditional values,
Pakistan speaking on behalf of the OIC, said that there were no agreed upon definitions of
sexual orientation and gender identity and added that it had no foundation in human rights
law. It was concerned that the resolution may encompass normalisation of acts of paedophilia

217

United Nations Human Rights Council, 17th session, Explanation of vote European Union "Sexual
Orientation ( L.9 Rev 1), 2011 [Online] http://www.scribd.com/doc/237224275/L-9-Rev-Sexual-OrientationEoV-FINAL [Retrieved 2014-08-19]
218

United Nations Human Rights Council, 17th session , Explanation of vote by Pakistan on behalf of the OIC
member states, on resolution entitled Human rights, sexual orientation and gender identity, 2011 [Online]
http://extranet2.ohchr.org/Extranets/HRCExtranet/portal/page/portal/HRCExtranet/17thSession/DraftResolutions
/AHRC17L.9Rev.1/Pakistan%20L.9%20Rev.%201.pdf [Retrieved 2014-08-19]
219

OHCHR, Council establishes mandate on Cte d'Ivoire, adopts protocol to child rights treaty, requests study
on discrimination and sexual orientation, 2011 [Online]
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11167&LangID=E [Retrieved 201408-12]
220

United Nations Human Rights Council, 17th session, Explanation of vote by Saudi Arabia on L.9, 2011
[Original online]
http://extranet2.ohchr.org/Extranets/HRCExtranet/portal/page/portal/HRCExtranet/17thSession/DraftResolutions
/AHRC17L.9Rev.1/Saudi%20Arabia%20L.9%20Rev.%201.pdf [English]
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11167&LangID=E [Retrieved 201408-19]
221

OHCHR, Council establishes mandate on Cte d'Ivoire, adopts protocol to child rights treaty, requests study
on discrimination and sexual orientation, 2011 [Online]
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11167&LangID=E [Retrieved 201408-12]

36

and incest and was detrimental to the institution of the family.222 Following this statement, a
majority of the OIC and African Group Member States walked out of the session.223 Many
states, including the Holy See, 224 lifted Article 5 of the VDPA out of its context and presented
it in a selective manner to justify their opposition to the resolution.225 The EU, on the other
hand, stated that the resolution was about ensuring all human rights for all without distinction,
and hoped that the panel would contribute to facilitating future discussions among States on
both side of the debate.226

222

United Nations Human Rights Council, 17th session, Statement on behalf of the OIC states on a panel
discussion on discrimination and violence based on sexual orientation and gender identity, 19th session of the
Human Rights Council, 7th March, 2012 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/19thSession/OralStatements/Pakistan%20OIC
.pdf [Retrieved 2014-08-19]
223

Evans, R., Islamic states, Africans walk out on UN gay panel. Reuters Thompson, 8th March 2012 [Online]
http://af.reuters.com/Article/topNews/idAFJOE82702T20120308?sp=true [Retrieved 2014-08-12]
224

United Nations Human Rights Council, 19th session, Statement by His Excellency Silvano M. Tomasi,
Permanent Observer of the Holy See to the United Nations and Other International Organizations in Geneva,
Item 3, General Debate and Panel Discussion on discriminatory laws and practices and acts of violence
against individuals based on their Sexual Orientation and Gender Identity, 2012 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/19thSession/OralStatements/37.%20Holy%20
See.pdf [Retrieved 2014-08-19]
225

VDPA, para. 5. The full Article reads [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.] Selective references emphasis only the first part [the significance of national and regional
particularities and various historical, cultural and religious backgrounds must be borne in mind]. See also
footnotes 371, 372.
226

United Nations Human Rights Council, 19th session, European Union: Panel on discrimination and violence
based on sexual orientation and gender identity, 2012 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/19thSession/OralStatements/EU%20panel%2
0SOGI.pdf [Retrieved 2014-08-19]

37

3.1.4 Womens human rights


The first women-specific resolution tabled in the Council, Integrating the human rights of
women throughout the UN system which, was adopted without a vote at the sixth session.227 It
was followed by what became annual resolutions on Accelerating efforts to eliminate all
forms of violence against women 228 and Elimination of discrimination against women229
which have been adopted without a vote since they were first introduced. The former
resolution urged community, tribal and religious leaders to promote empowerment of women
and girls in order to address harmful attitudes, customs, practices, stereotypes and unequal
power relations that preserve violence against women and girls.230 It stressed that States must
not be allowed to employ customs, traditions and religion as justifications to derail their
human rights duties with respect to the elimination of gender-based violence.231 It recognised
that child, early and forced marriage is an obstacle for enjoyment of human rights and that
empowerment including meaningful participation of women and girls in decision-making
processes are essential to foster gender equality.232 Furthermore, the resolution called for
elimination of gender-based violence in the family and expressed concern233 that some social
norms hamper womens agency in the public and private sphere which limits their capacity to
leave abusive situations and relationships.234
The latter resolution stipulated that customs and traditions that restrict participation of women
and girls in economic, social and development processes are discriminatory and contribute to
227

UNHRC, Integrating the human rights of women throughout the United Nation system, Resolution 6/30, 2007

228

UNHRC, Accelerating efforts to eliminate all forms of violence against women, Resolution 11/2, 2009; For
most recent edition see UNHRC, Accelerating efforts to eliminate all forms of violence against women ,
A/HRC/26/15, 2014
229

UNHRC, Elimination of discrimination against women, A/HRC/RES/12/17, 2009; For most recent edition see
UNHRC, Elimination of discrimination against women, A/HRC/26/5, 2014
230

UNHRC, Accelerating efforts to eliminate all forms of violence against women, Resolution 11/2, 2009; Most
recent edition A/HRC/26/L.26/Rev.1, 2014, para. 2
231

Ibid., pp. 11

232

Ibid., pp. 12

233

Ibid., para. 1

234

Ibid., pp. 15

38

feminisation of poverty.235 It deeply regretted persistent discriminatory laws and practices that
contribute to multidimensional discrimination of women and girls which furthers their
marginalisation.236 The resolution called upon States to, among other efforts, invoke genderresponsive policies directed at venues including the family in reaction to poverty and social
exclusion that creates structural barriers for womens and girls enjoyment of sustainable
participation in economic and social life.237 Moreover, it underscored the paramount
importance of state measures to eliminate discriminatory practices that impede the right to
education as a tool for advancing gender equality.238 Finally it welcomed the focus on
discrimination against women in law and in practice in family and cultural life in the next
report of the Working Group on the issue of discrimination against women in law and
practice.239

3.1.5 Female Genital Mutilation


In an encouraging move, the twenty-fourth session of the Council adopted without a vote the
resolution High-level panel on the identification of good practices in combating female
genital mutilation, tabled by Chile, Guatemala and Gabon (the latter on behalf of the African
Group).240 The resolution decided to convene a panel discussion to identify best practices in
tackling FGM.241 The uniform condemnation of the practice that allowed for consensus on the
resolution was further demonstrated by States contributions to the panel discussion that
followed. Intervening on behalf of the African Group, Ethiopia said that FGM constituted a
deplorable violation of the bodily integrity and human rights of women and girls with
235

UNHRC, Elimination of discrimination against women, A/HRC/26/L.12, 2014, pp. 7

236

Ibid., pp. 10

237

Ibid., para. 4

238

Ibid., para. 15

239

Ibid., para. 22

240

UNHRC, High-level panel on the identification of good practices in combating female genital mutilation,
A/HRC/DEC/24/117, 2013
241

Ibid., para. 2

39

abhorrent physical, mental and reproductive consequences and sometimes death.242 The Arab
Group, represented by Egypt, stated that the practice had no religious connotation and pledged
their commitment to work to end the practice through awareness-raising and health campaigns
complemented with adoption of laws criminalizing the practice.243 Togo stressed that legal
measures must be taken in conjunction with social campaigns to change the mindset of
people.244 The EU pointed to its national, regional and international collaborative efforts with
the African Union, the UN and civil society organisations in its effort to achieve zero
tolerance for FGM.245

3.1.6 Child, early and forced marriage


Adopted without a vote at the twenty-fourth session of the Council, the resolution
Strengthening efforts to prevent and eliminate child, early and forced marriage: challenges,
achievements, best practices and implementation gaps expressed deep concern over harmful
traditional practices that causes child, early and forced marriage.246 It unanimously called for

242

United Nations Human Rights Council, 24th session, High-level panel on the identification of good practices
in combating female genital mutilation, Draft Statement by the African Group, 16th June, 2014 [Online]
http://www.scribd.com/doc/237210065/1-Ethiopia-on-Behalf-of-African-Group-HL-13-English [Retrieved
2014-08-19]
243

United Nations Human Rights Council, 24th session, High-level panel on the identification of good practices
in combating female genital mutilation, Draft Statement by the Arab Group, 16th June, 2014 [Original online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/2_Egypt%20on%
20behalf%20of%20Arab%20Group_HL_13.pdf [English version]
http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=14713&LangID=E [Retrieved 201408-19]
244

United Nations Human Rights Council, 24th session, High-level panel on the identification of good practices
in combating female genital mutilation, Draft Statement by the Togo, 16th June, 2014 [Original online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/19_Togo_HL_13
.pdf [Retrieved 2014-08-30] [English]
http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=14713&LangID=E [Retrieved 201408-31]
245

United Nations Human Rights Council, 24th session, High-level panel on the identification of good practices
in combating female genital mutilation, Draft Statement by the European Union, 16th June, 2014 [Online]
http://www.scribd.com/doc/237211366/European-Union-22-NV [Retrieved 2014-08-19]
246

UNHRC, Strengthening efforts to prevent and eliminate child, early and forced marriage: challenges,
achievements, best practices and implementation gaps, A/HRC/RES/24/23, 2013, pp. 6

40

a panel discussion to address the issue.247 Taking the floor at the panel, the African Union
highlighted that out of the 41 countries with a child marriage rate of 30 percent or higher, 30
of the countries were African. Child, early and forced marriages are products of multiple
human rights abuses linked to poverty, discrimination and exclusion of chiefly girls, the
representative stated.248 Ethiopia, on behalf of the African group, stressed the correlation
between poverty, traditional harmful practices and child marriage. Child, early and forced
marriages created severe obstacles for the enjoyment of all human rights and in particular for
social and economic rights. The representative called upon States to put all forms of
violations against women at the core of poverty reduction and democratisation efforts.249
In a joint statement, Austria, Croatia and Slovenia declared that child marriage must be
unequivocally opposed as a harmful practice and eradication of child, early and forced
marriages must be a vital component in measures to promote gender equality and
empowerment of women in the post-2015 development framework.250 This position was
echoed by Costa Rica, speaking on behalf of the Community of Latin American and
Caribbean States, who underscored that the Council must effectively engage in the post2015 development agenda to ensure that the issue was dealt with from a human rights
perspective.251 On behalf of the Nordic countries, Norway condemned the harmful practice

247

Ibid., para. 1

248

United Nations Human Rights Council, 26th session, Statement to the Human Rights Council: High-Level
Panel on Preventing and Eliminating Child, Early and Forced Marriages, Nyaradzayi Gumbondzvanda, African
Union Goodwill Ambassador for Campaign to End Child Marriage, 23th June, 2014 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/African_Union_P
D_30.pdf [Retrieved 2014-08-19]
249

United Nations Human Rights Council, 26th session, Statement by Republic of Ethiopia at the 26 th session of
the Human Rights Council on behalf of the African Group on Panel Preventing and eliminating child, early and
forced marriage, 23th June, 2014 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/1_Ethiopia%20o
n%20behalf%20of%20African%20Group_PD_30.pdf [Retrieved 2014-08-19]
250

United Nations Human Rights Council, 26th session, Joint Statement by Austria, Croatia and Slovenia at the
26 session of the Human Rights Council on Panel Preventing and eliminating child, early and forced marriage,
23th June, 2014 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/3_Austria%20on
%20behalf%20ofgroup%20of%20States_PD_30.pdf [Retrieved 2014-08-19]
th

251

United Nations Human Rights Council, 26th session, Costa Rica on behalf of the Community of Latin
American and Caribbean States at the 26th session of the Human Rights Council on Panel Preventing and
eliminating child, early and forced marriage, 23th June, 2014 [Original online]

41

and welcomed the imperative contributions from civil society organisations to accelerate
womens human rights and gender equality.252 Egypt, on behalf of the Arab Group,
maintained that child, early and enforced marriages must not be linked to a specific culture
or religion. The representative identified legislation that directed the age for marriage
together with enhanced awareness efforts by civil society as key tools to tackle the issue.253

3.2. Treaty-based bodies


Often deemed to be quasi-judicial,254 the treaty body system is comprised of nine human
rights bodies which are made up of an equal number of committees that consists of
independent experts serving in their personal capacity. Each Committee is mandated to
monitor States Parties compliance with the provisions contained in the corresponding
international human rights treaty. In executing their task, the Committees engage in a
constructive dialogue on the human rights situation in States Parties and subsequently issue
non-binding Concluding Observations.255 These recommendations serve to enhance the
compliance with the rights enshrined in the treaties and have been called [] the single
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/5_Costa%20Rica
%20on%20behalf%20of%20CELAC_PD_30.pdf [Retrieved 2014-08-19] [English]
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14760&LangID=E [Retrieved 201409-05]
252

United Nations Human Rights Council, 26th session, Permanent Mission of Norway: Nordic Statement at the
26 session of the Human Rights Council on Panel Preventing and eliminating child, early and forced marriage,
23th June, 2014 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/4_Norway%20on
%20behalf%20of%20the%20Nordic%20countries_PD_30.pdf [Retrieved 2014-08-19]
th

253

United Nations Human Rights Council, 26th session, Statement by Egypt on behalf of the Arab Group, 23th
June, 2014 [Original online] [Original online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/26thSession/OralStatements/6_Egypt%20on%
20behalf%20of%20Arab%20Group_PD_30.pdf [English version]
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14760&LangID=E [Retrieved 201408-13]
254

Lewis-Anthony, S., & Scheinin M., Treaty-based Procedures for Making Human Rights Complaints Within
the UN System p. 43 in Hannum, H., Guide to International Human Rights Practice, [4th ed.] Transnational
Publishers: New York, 2004, p. 43
255

OFlaherty, M., The Concluding Observations of United Nations Treaty Bodies, in Human Rights Law

Review, Vol. 6, No. 1, 2006, p. 33

42

most important activity by human rights treaty bodies by a former member of the Human
Rights Committee.256 In this light, Committees constitute a promising research focus as they
uphold treaties that purport to safeguard the universality of human rights.

3.2.1 Committee on the Elimination of Discrimination Against Women


Article 5(a) of ICEDAW demands that States Parties modify social and cultural patterns that
stem from [] the idea of inferiority or superiority of either of the sexes or on stereotyped
roles for men and women.257 Article 5(b) notes that fixed parental gender roles contributes to
discrimination against women and calls upon Stats Parties to ensure that family education
encompass an understanding of the shared family responsibility between men and women and
that the interest of the child must be at the centre stage at all times.258 The provisions of
Article 5 must be implemented without delay after ratification as stipulated by Article 2. 259
The Committee has in its Concluding Observations reminded States Parties that despite
economic difficulties, steps towards gender quality must be implemented,260 without delay.261
Article 5 is linked with the language of Article 2(f) which obliges States Parties to [] take
all appropriate measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women.262 In General
Recommendation 3, CEDAW saw it necessary to address the [] the existence of
stereotyped conceptions of women, owing to socio-cultural factors, that perpetuate

256

Ibid., p. 27

257

ICEDAW, Article 5(a)

258

Ibid, Article 5(b)

259

ICEDAW, Article 2

260

CEDAW, CO Ecuador, A/49/38, 13th session, 1994, para. 540

261

CEDAW, CO Gabon, A/60/38(SUPP), 2005, paras. 49,51, 55, 240; CEDAW, CO Malawi,
CEDAW/C/MWI/CO/5, 2006, para. 20
262

Ibid., Article 28(f)

43

discrimination based on sex and hinder the implementation of Article 5 of the Convention263
and urges States Parties to implement education and public information measures to eliminate
obstacles of the social equality of women.264 The prominent standing of Article 5 in the
convention is highlighted in General Recommendation 25 of CEDAW which identifies
Article 5 as the foundation for the third treaty obligation stemming from CEDAW; that []
States Parties obligation is to address prevailing gender relations and the persistence of
gender-based stereotypes that affect women [].265 Article 5(a) of the Convention notes that
elimination of discrimination against women is impossible if norms and values that cause
such discrimination are not modified.266 The Committee made explicit reference to this
Article, in conjunction with Article 2(f), in its Concluding Observations of the review of
Burundis periodic report.267 It recommended that the State Party takes measures and
increases its efforts to eliminate persistent patriarchal attitudes, stereotypes and negative
cultural practices which contribute to the subordination of women in all spheres of society and
hindered their enjoyment of the rights in the Convention.268 Some groups of women face
intersectional discrimination on the basis of, for example SOGI as addressed by the
Committees Concluding Observations in relation to the periodic report of Panama.269
The Committee has in its Concluding Observations often acknowledged the rich cultural
heritage of States Parties but has always taken a firm stand for womens human rights in the
face of HCP.270 The message to States Parties is clear; culture and religion can never justify
263

CEDAW, CEDAW General Recommendations Nos. 2, 3 and 4, adopted at the Sixth Session, 1987 (contained
in Document A/42/38), 1987, para. 2
264

Ibid., para. 3

265

CEDAW, General Recommendation No. 25, on Article 4, paragraph 1, of the Convention on the Elimination
of All Forms of Discrimination against Women, on temporary special measures, HRI/GEN/1/Rev.7, 2004, para.
7
266

ICEDAW, Article 5(a)

267

CEDAW, Concluding Observations (CO) Burundi, CEDAW/C/BDI/CO/4, 2008, para. 18

268

CEDAW, CO Burundi, CEDAW/C/BDI/CO/4, 2008, paras. 17,18

269

CEDAW, CO Panama, CEDAW/C/PAN/CO/7, 2010, para. 17

270

CEDAW, CO Cambodia, CEDAW/C/KHM/CO/3, 2006, para. 17; CEDAW, CO Cook Islands,


CEDAW/C/COK/CO/1, 2007, para. 22

44

discrimination against women. In relation to what the Committee viewed as significant


inequalities to the detriment of women in Morocco, it underlined that cultural characteristics
could neither be invoked to undermine the universality of human rights, nor to refrain from
making efforts to benefit the status of women.271 Similarly, the Committee regretted that in
Vanuatu cultural norms carrying adverse impacts on womens human rights were treated on
an equal footing with the constitution and that the principle of equality between the sexes
lacked primacy over discriminatory norms enshrined in customary law.272 With regards to
religion, the Committee has recommended States Parties including Indonesia and Turkey to
provide training to judges, prosecutors, including those serving in religious courts in order to
achieve a legal culture that is conducive for equality273 and that ensure de jure and de facto
implementation of the convention.274
Complementing the general concern over discriminatory effects of social and cultural patterns
perpetuating women as the inferior sex, the Committee has frequently addressed specific
HCP. In relation to the periodic report of Nigeria, the Committee was disturbed by the
continuing existence of inhumane rites targeting widows, FGM and polygamy.275 The
Committee reiterated its serious concern about entrenched HCP in its latest review of
Nigeria.276 In 1996, the Committee recommended that China adopt laws prohibiting sexselective abortion.277 Apparently the Committee was not satisfied with measures taken as it a
decade later found it necessary to express concern about deep-rooted stereotypes about gender
roles in the family that worked to the detriment of women and manifested itself in HCP such
as son-preference and illegal sex-selective abortion.278 CEDAW recommended that Congo
271

CEDAW, CO Morocco, A/52/39/Rev.1, CEDAW 16th session, 1997, para. 64

272

CEDAW, CO Vanuatu, CEDAW/C/VUT/CO/3, 2007, para. 10

273

CEDAW, CO Indonesia, CEDAW/C/IDN/CO/5, 2007, para. 9; CEDAW, CO Indonesia,


CEDAW/C/IDN/CO/6-7, 2012, para. 12
274

CEDAW, CO Turkey, A/52/38, 16th session, 1997, para. 164

275

CEDAW, CO Nigeria, A/53/38, 19th session, 1998, para. 153

276

CEDAW, CO Nigeria, CEDAW/C/NGA/CO/6, 2008, para. 19

277

CEDAW, CO China, A/54/38/Rev.1, 1999, para. 299(d)

278

CEDAW, CO China, CEDAW/C/CHN/CO/6, para. 17, 2006

45

develop an action plan to eliminate FGM279 and to bring marriage laws into compliance with
the Convention to combat forced marriages280 and polygamy which discriminates against
women.281 In the subsequent review of the State Party the Committee echoed its call for
legislation prohibiting HCP.282 The Committee recommended that Albania promote positive
cultural change through media with a view to foster gender equality as required by Article 5
of the Convention.283 In its Concluding Observations to the subsequent review of Albania, the
Committee remained concerned over the States limited efforts to challenge HCP including
child, early and forced marriages, bride price, dowry and honour killings.284
The Committee has been consistent in its critic against HCP and has avoided a biased
geographical scope.285 It recommended that Switzerland urgently take all appropriate
measures to eradicate FGM286 in response to [] the significant number of cases of female
genital mutilation among migrant women of African descent.287 This concern was not raised
among the Concluding Observations to the subsequent periodic report.288 In relation to
Denmark, the Committee was distressed by the absence of legislation criminalising residents
who arranged for FGM abroad.289 Thus the Committee recommended that Denmark penalise
residents who facilitated the practice regardless of where it occurred.290 The Committee did
279

CEDAW, CO Congo, A/58/38, 28th session, 2003, para. 180

280

Ibid., para. 425

281

Ibid., paras. 118,119,213,214

282

CEDAW, CO Congo, CEDAW/C/COD/CO/6-7, 2013, para. 20(b)

283

CEDAW, CO Albania, A/58/38, 28th-29th session, 2003, para. 69

284

CEDAW, CO Albania, CEDAW/C/ALB/CO/3, 2010, para. 24

285

The risk of othering some cultures through orientalising culture should be noted in this context. See for
example United Nations Human Rights Council, Intersections between culture and violence against women,
Report of the Special Rapporteur on violence against women, its causes and consequences, A/HRC/4/34, 2007,
paras. 46-50
286

CEDAW, CO Switzerland, A/58/38, 28th-29th session, 2003, para, 119

287

Ibid., para. 18

288

CEDAW, CO Switzerland, CEDAW/C/CHE/CO/3, 2009

289

CEDAW, CO Denmark, A/57/38 (Part II), 27th session, 2002, para. 337

290

Ibid., para. 338

46

not return to this concern in the Concluding Observations in the subsequent periodic report.291
Similarly the Committee requested Norway in 2003 to continue to implement measures to
eradicate forced marriages and FGM.292 It did however not return to this concern in the
Concluding Observations to the subsequent periodic report.293 Far from being a one way
communication exercise, the dialogue between States Parties and the Committee offers an
opportunity for constructive dialogue on HCP. Bulubulu is a practice in Fiji by which an
apology to the father of a rape victim, without the knowledge of the victim, may be
considered as sufficient redress.294 Unsurprisingly the Committee spotlighted the
incompatibility of Bulubulu with the Convention in the dialogue with Fiji.295 The state
representative agreed to the harmful nature of the practice, particularly when courts of law
drew on Bulubulu.296 In this context, the representative underlined the growing rejection of
the practice by victims and their relatives and that reform measures where planned in order to
comply with the Convention.297 In its Concluding Comments to the Fiji report, the Committee
called on the State to step up its efforts of prohibiting Bulubulu.298 In its dialogue with Saudi
Arabia, the Committee expressed concern about the issue of male guardianship, mehrem,
under Islamic law.299 The state representative explained that it aimed at protecting Muslim
women and their dignity and was not intended to restrict their movement or to prevent women
from exercising their rights.300 This insurance did however not stop the Committee from

291

CEDAW, CO Denmark, CEDAW/C/DEN/CO/7, 2009

292

CEDAW, CO Norway, A/58/38, 28-29th session, 2003, para. 426

293

CEDAW, CO Norway, CEDAW/C/NOR/CO/8, 2012

294

CEDAW, Initial Report of States Parties, Fiji Islands, CEDAW/C/FJI/1, 2000, (Part II), para. 1.8

295

CEDAW, Summary record of the 530th meeting, CEDAW/C/SR.530, 2002, paras. 29, 35, 37

296

CEDAW, Summary record of the 538th meeting, CEDAW/C/SR.530, 2002, para. 7

297

Ibid.

298

CEDAW, CO Fiji, A/57/38 (Part I), 26th session, 2002, para. 59

299

CEDAW, Summary record of 815th meeting, CEDAW/C/SR.815, 2008, para. 20, 64

300

Ibid., para. 66

47

stating in its Concluding Comments that the practice seriously limited womens access to
rights contained in the Convention.301
Furthermore, the Committee has referred to violations of Article 5 in its jurisprudence
stemming from communications under its complaint procedure,302 in particular in reference to
lack of protection against domestic violence.303 The Committee has also made clear that any
reservations founded on traditional, religious, cultural practice or incompatible domestic laws
or policies can never justify violations of the Convention.304 States Parties have when
necessary been reminded that such reservations are deemed incompatible with the object and
purpose of the Convention and are therefore impermissible and should be modified or
withdrawn.305

3.2.2 Committee on Economic, Social and Cultural Rights


The language in ICEDAW leaves little margin for States to interpret their obligation to
without delay implement provisions in the Convention.306 The parallel language in ICESCR is
at first glance less demanding.307 Indeed, the position of the Committee is that not all rights in
ICESCR can be achieved with immediate effect.308 Nevertheless, States Parties have to
comply with the provisions in ICESCR Article 2.1 which, geared towards the fulfilment of
economic, social and cultural rights, states that,
301

CEDAW, CO Saudi Arabia, CEDAW/C/SAU/CO/2, 2008, para. 15

302

Vertido v he Philippines, CEDAW Communication No/18/2008, CEDAW/C/46/D/18/2008, 2010, para. 3.4,


8.9
303

Mindful of the narrow definition of HCP pronounced in chapter 1.1, see Ms AT v Hungary, CEDAW
Communication No 2/2003, CEDAW /C/32/D/2/2003, 2005, para. 9.6., Sahide Goekce v Austria, CEDAW
Communication no 5/2005, CEDAW/C/39/D/5/2005, 2007, para. 3.6; Fatma Yildirim (deceased) v Austria,
Communication No. 6/2005, CEDAW/C/39/D/6/2005*, 2007, para. 3.6
304

CEDAW, General statement on the Impact of Reservations, 19th session, 1998, para. 17

305

CEDAW, CO Israel, CEDAW/C/ISR/CO/3, 2005, para. 25; and specifically in relation to Article 5 CEDAW,
CO India, CEDAW/C/IND/CO/3, 2007, para. 10
306

ICEDAW, Article 2

307

ICESCR, Article 2(1)

308

CESCR, General Comment 9, The domestic application of the Covenant, E/C.12/1998/24, 1998, para. 2

48

Each State Party to the present Covenant undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures. 309

The first obligation, to take steps, is unconditional and as such a State Partys failure to
comply is a violation of the Covenant.310 Steps include both legal and non-legal measures to
respect, protect and fulfil economic, social and cultural rights.311 The second obligation is to
ensure that the above mentioned steps are taken with a view to progressively realise all rights
in the Covenant. Thus States Parties are obliged to continuously improve the status of
economic, social and cultural rights within its jurisdiction and to refrain from deliberate
retrogressive measures.312 Moreover, rights enshrined in the Covenant have a minimum core
which States Parties are under a direct obligation to guarantee individuals and groups.313 The
third obligation concerning available resources calls upon States Parties to demonstrate that
available domestic and international resources, from both the private and public sphere, are
used in an equitable and effective manner towards the full realisation of the Covenant.314 The
fourth and final obligation stemming from Article 2.1 is the obligation to seek or provide
international assistance or cooperation. The Committee has interpreted this provision as an
obligation for economically developed States Parties to assist developing States Parties to
realise the minimum core obligations set forth in the Covenant. It follows that, vice versa,
States Parties in need of assistance to uphold the minimum core of the substantive rights in
the Covenant is under an obligation to seek assistance and cooperation from economically

309

ICESCR, Article 2.1

310

CESCR, General Comment 3, The nature of States parties' obligations (Fifth session, 1990), U.N. Doc.
E/1991/23, annex III at 86 (1991),reprinted in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 14, 2003, (General
Comment 3) para. 2
311

Ibid., para. 3

312

Ibid., para. 9

313

Ibid., para. 10

314

Ibid., para. 13; Ssenyonjo, M., Economic, Social and Cultural Rights in Baderin, M. & Ssenyonjo, M.
International human rights law. Ashgate Publishing: Farnham, 2011, p. 63

49

developed States Parties. 315 Underpinning all four obligations is the immediate application of
non-discrimination derived from Article 2(2) which is neither subject to progressive
realisation nor dependent on available resources.316
In General Comment 14, the Committee outlines States Parties legal duties to respect, protect
and fulfil the right to health.317 In relation to HCP in the health sector, this three-dimensional
approach encompasses, among other measures, States Parties duty to respect the right to
health and to refrain from adopting discriminatory practices affecting womens status in
society.318 The duty to protect encompasses States Parties obligation to ensure that harmful
practices, such as FGM, do not interfere with the right to health.319 The obligation to fulfil
entails States Parties to promote medical research, health education and to inform about
impacts of traditional practices.320 In elaboration of Article 3, General Comment 16
acknowledges that women are often restricted in their enjoyment of economic, social and
cultural rights based on gender discrimination arising from misogynist traditional practices.321
Article 3 of the Convention stipulates that [] States Parties to the present Covenant
undertake to ensure the equal right of men and women to the enjoyment of all economic,
social and cultural rights set forth in the present Covenant.322 To this end, States Parties must
overcome obstacles including cultural and religious traditions which neglect womens
concerns in health and economic research and hinder womens participation in cultural life.323
315

CESCR, General Comment 14, para. 45; CESCR, CESCR, General Comment 3, para. 13; CESCR, Poverty
and the International Covenant on Economic, Social and Cultural Rights, E/C.12/2001/10, 2001, paras. 16-17
316

CESCR, General Comment 18, Article 6: the equal right of men and women to the enjoyment of all economic,
social and cultural rights (35th session, 2006), U.N. Doc. E/C.12/GC/18, (General Comment 18), 2006, para. 33
317

CESCR, General Comment 14, 2003, para. 33

318

Ibid., para. 34

319

Ibid., para. 35

320

Ibid., para. 36

321

CESCR, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic,
Social and Cultural Rights (Art. 3 of the Covenant), 11 August 2005, E/C.12/2005/4, 2005 (CESCR, General
Comment 16) para. 5
322

CESCR, Article 3

323

CESCR, General Comment 16, para. 31

50

Temporary special measures are a vehicle that is encouraged by the Committee in order to
ensure that State Parties guarantee gender equality in exercise of rights in the Covenant.
Such measures are not to be considered discriminatory in themselves as they are grounded in
the States obligation to eliminate disadvantage caused by past and current discriminatory
laws, traditions and practices., states the Committee.324 In relation to gender equality in
exercise of to the right to work, General Comment 18 notes that certain traditional cultures
infringe on the opportunities for women to employment.325 General Comment 21 stresses that
a violation of the right of everyone to take part in cultural life occurs when a State Party fails
to take steps to combat harmful practices, including FGM and accusations of witchcraft which
create an obstacle for the victim to the full exercise of the right.326
In explicit relation to HCP, the Committee stressed in its Concluding Observations to
Zambias periodic report that HCP including widow cleansing, early marriages and denial of
inheritance327 must be eliminated in the State Party.328 It remains to be seen if the Committee
reiterates its concerns in the next review of Zambia. Similarly, the Committee urged
Cameroon to eliminate HCP including polygamy, forced marriages, FGM and bias in favour
of education of boys.329 These concerns, together with recommendations to accelerate efforts
of making FGM, breast-ironing and marital rape punishable under the Criminal Code, were
repeated in the Concluding Observations to the State Partys subsequent periodic report.330
The Committee, in relation to Congo, noted persistent HCP of dowry payments, levirate
marriage, polygamy, forced and early marriage, and FGM. Congo was reminded about the
immediate duty of States Parties to fulfil Article 3 and recommended to implement measures

324

Ibid., para. 36

325

CESCR, General Comment 18, para. 13

326

CESCR, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), U.N.
Doc. E/C.12/GC/21, 2009, para. 64
327

CESCR, CO Zambia, E/C.12/1/Add.106, 2005, para. 23

328

Ibid., para. 45

329

CESCR, CO Cameroon, E/C.12/1/Add.40, 1999, para. 15

330

CESCR, CO Cameroon, E/C.12/CMR/CO/2-3*, 2012, para. 20

51

without delay to eliminate discriminatory practices against women.331 It remains to be seen if


the Committee reiterates its concerns in the next review of Congo. In relation to FGM, the
Committee has recommended that States Parties dedicated to eradicate FGM332 should inform
about its harmful consequences and encourage alternative practices.333 In the same vein,
Zimbabwe was reminded that arranged marriages of children and forced marriages of widows
with a late husband's brother violated Article 3 of the Covenant.334 The Committee noted that
the State Party must ensure de jure non-discrimination of any kind immediately335 and
prioritise de facto discrimination against women.336 It remains to be seen if the Committee
reiterates its concerns in the next review of Zimbabwe. The Committee recommended that
France should raise the legal minimum age for girls for marriage to 18,337 which the
Committee noted had been done in their consideration of Frances subsequent periodic
review.338 Switzerland was urged to take measures including legislation to prohibit forced
marriages.339 It remains to be seen if the Committee reiterates its concerns in the next review
of Switzerland. Over two consecutive reviews, the Committee urged that Nepal enforce
legislation prohibiting HCP that violate Covenant rights of women and girls including
prostitution among the badi caste,340 deuki (prostituting girls to a God or Goddess),341
chaupadi (isolating a woman during menstruation because she is considered to be impure),342
331

CESCR, CO Democratic Republic of Congo, E/C.12/COD/CO/4, 2009, para. 20

332

CESCR, Replies by the Government of Kenya to the list of issues (E/C.12/KEN/Q/1) to be taken up in
connection with the consideration of initial report of Kenya (E/C.12/KEN/1), E/C.12/KEN/Q/1/Add.1, 2008,
paras. 96-97
333

CESCR, CO Kenya, E/C.12/KEN/CO/1, 2008, para. 23

334

CESCR, CO Zimbabwe, E/C.12/1/Add.12, 1997, para. 10

335

Ibid., para. 16

336

Ibid., para. 17

337

CESCR, CO France, E/C.12/1/Add.72, 2001, para. 27

338

CESCR, CO France, E/C.12/FRA/CO/3, 2008, para. 6

339

CESCR, CO Switzerland, E/C.12/CHE/CO/2-3, 2010, para. 7

340

CESCR, CO Nepal, E/C.12/1/Add.66, 2001, para. 43

341

Ibid.

342

CESCR, CO Nepal, E/C.12/NPL/CO/2, 2008, para. 34

52

child brides343 and witchcraft.344 Likewise, over two consecutive Concluding observations on
national periodic reports, Benin has been requested to take steps, 345 take more energetic and
realistic steps,346 redouble its efforts347 and to take energetic action by all available means348
to combat HCP discriminating against women and girls. Nigeria has been urged to cease and
prevent through all appropriate means including, enacting legislative, measures to prohibit
HCP.349 Bearing in mind the narrow definition of HCP pronounced in Chapter 1.1, the
Committee has in relation to some European and other States Parties, rather than addressed
HCP,350 as defined here, frequently expressed concern over domestic violence,351
trafficking352 and xenophobia353 and have urged States Parties to immediately implement
remedial policies to end discrimination against minorities354 and indigenous peoples355 and to
protect and promote their culture.356

343

Ibid.

344

Ibid.

345

CESCR, CO Benin, E/C.12/BEN/CO/2, 2008, para. 35

346

CESCR, CO Benin, E/C.12/1/Add.78, 2002, para. 30

347

Ibid., para. 31

348

Ibid., para. 32

349

CESCR, CO Nigeria, E/C.12/1/Add.23, 1998, paras. 39-40

350

The risk of othering some cultures through orientalising culture should be noted in this context. See for
example Human Rights Council, Intersections between culture and violence against women, Report of the
Special Rapporteur on violence against women, its causes and consequences, A/HRC/4/34, 2007, paras. 46-50
351

CESCR, CO Austria, E/C.12/AUT/CO/4, 2013, para. 18; CESCR, CO Iceland, E/C.12/ISL/CO/4, 2012, para.

15
352

CESCR, CO Denmark, E/C.12/1/Add.102, 2004, para. 19; CESCR, CO Portugal, E/C.12/1/Add.53, 2000,
para. 22
353

CESCR, CO Liechtenstein, E/C.12/LIE/CO/1, 2006, para. 10; CESCR, CO Belgium, E/C.12/1/Add.54, 2000,
para. 9
354

CESCR, CO Germany, E/C.12/1/Add.29, 1998, para. 28; CESCR, CO New Zealand, E/C.12/NZL/CO/3,
2012, para. 12
355

CESCR, CO Sweden, E/C.12/SWE/CO/5, 2008, para. 15; CESCR, CO Finland, E/C.12/FIN/CO/5, 2008,
para. 20
356

CESCR, CO Norway, E/C.12/NOR/CO/5, 2012, para. 26; CESCR, CO Australia, E/C.12/AUS/CO/4, 2009,
paras. 32-33

53

Article 4 of the Covenant allows States Parties to invoke non-discriminatory limits on rights
to prevent HCP in the interest of [] promoting the general welfare in a democratic
society.357 States have regrettably misused this provision to subject rights in the Convention
to requirements of compliance with religious and cultural convictions. In this regard the
Committee has highlighted non-discrimination provisions in the Covenant and rejected
restriction of womens rights in Libya justified on the basis of Sharia law.358 The Committee
observed that the Constitution of Iran qualified universal rights in the Covenant to compliance
with Islam. It made clear that such restrictions were incompatible with the objective and
purpose of the Covenant as they negatively affected the application of the Covenant. The
Committee firmly stated that [i]t is apparent that the authorities in Iran are using the religion
as a pretext in order to abuse these rights.359 Noting that religious dimensions in Moroccos
civil law contradicted rights in the Covenant, the Committee clarified that it [] considers
that when a State has ratified the Covenant without making any reservations, it is obliged to
comply with all provisions of the covenant.360
The Optional Protocol to the Covenant entered with ten ratifications into force in May 2013
and mandates the Committee to consider communications361 and to engage in an inquiry
procedure.362 At the time of writing, these mechanisms have yet to be utilized.

357

ICESCR, Article 4

358

CESCR, CO Libya, E/C.12/1/Add.15, 1997, para. 13

359

CESCR, CO Iran, E/C.12/1993/7, 1993, para. 4

360

CESCR, CO Morocco, E/C.12/1994/5, 1994, para. 9

361

UNGA, Optional Protocol to the International Covenant on Economic, Social and Cultural Right : resolution
/ adopted by the General Assembly, A/RES/63/117, 5 March 2009, Article 1
362

Ibid., Article 11

54

4. Findings
As demonstrated in chapter 2, cultural relativism fails to provide satisfactory protection
against HCP. The criticism that human rights cannot be universal as the doctrine is charged
with democracy and liberalism, and thus proselytises ethnocentric western values
incompatible with cultural diversity, fails to convince as advocates of a relativist approach to
human rights employ sweeping generalisations about western and other cultures. Instead of
providing useful solutions for avoiding ethnocentrism they offer unrealistic suggestions of
reconciling differing cultures through negotiations on what a legitimate human rights corpus
should include. What is even more concerning is their blatant failure to secure space in
internal cultural dialogue for disenfranchised individuals and groups in the face of elites that
are likely to dictate the discourse to the benefit of status quo and, as a consequence, to the
detriment of human rights standards that protect marginalised citizens. It seems that the
cultural relativist agenda goes too far in assuming that HCP will magically evaporate to the
benefit of all members within the confinement of closed cultures. Instead of perceiving
universal human rights as a cultural imperialistic threat, a more fruitful position would be for
advocates of cultural relativism to identify the dominant groups and elites within cultures,
which often prevent honest internal cultural dialogue, as the true imperialists. They are the
opposition, not a human rights doctrine that by the universality of its nature identify all
humans as equal in rights. Donnellys endeavour of reconciling cultural relativism and
universalism in a theory on the relative universality of human rights also fails to safeguard
rights-holders against excesses of cultural relativism and thus offers insufficient protection for
rights-holders from HCP. It is instead the defence of universal human rights found in the
personhood approach that by championing meaningful exercise of autonomy and liberty
protects persons from HCP. This justification of universal human rights is underpinned by the
inherent worth and dignity of the human person and thus appreciates cultural diversity but
rejects both cultural imperialism and HCP.
The most striking finding in relation to the Council is that resolutions on traditional values,
and SOGI have divided States in to two camps whereas resolutions on womens human rights,
FGM and child, early and forced marriages have been adopted without a vote. States
belonging to the Western European and other States regional group have consequently

55

opposed resolutions on traditional values while supporting the resolution on SOGI. The
voting records and oral statements demonstrate that the remaining regional groups have failed
to reach a uniform position on these resolutions.363 Nonetheless, they have gathered enough
votes to be adopted.
Alien to international human rights law, the undefined concept of traditional values
contradicts the mandate of the Council to promote universal respect for the protection of all
human rights for all people.364 None of these resolutions acknowledge that traditional values
must not be invoked by States to justify human rights violations or to legitimise
discrimination.365 States in favour of resolutions on traditional values ignore the
recommendation included in the final study on the topic by the Advisory Committee to []
take sustained and systematic action to modify or eliminate stereotypes and negative, harmful
and discriminatory practices justified by traditional values.366 In this light, it is clear that the
first study conducted by the Advisory Committee employ an approach based on cultural
relativism while the subsequent report tried to remedy flaws in the first draft by presenting the
issues related to traditional values in the framework of international human rights law which
stresses the universality of human rights. The imposed traditional values doctrine is also
incompatible with the VDPA which underscores that [w]hile 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 freedoms367 and highlights
363

OHCHR, Membership of the Human Rights Council, 2014 [Online]


http://www.ohchr.org/EN/HRBodies/HRC/Pages/Membership.aspx [Retrieved 2014-09-02]
364

UNGA resolution, Human Rights Council, A/res/60/251, 2006, pp. 2

365

See for example, Federal Law On Protection of Children from Information Harmful to their Health and
Development, adopted on 29 December 2010, No. 436 F3 [Original online] http://www.rg.ru/2010/12/31/detiinform-dok.html [Russian] [Retrieved 2014-08-30]; Law on protecting children from negative and harmful
information [Online] http://eng.kremlin.ru/news/1580 [English] [Retrieved 2014-08-30]; Amendments to the law
on protecting children from information harmful to their health and development [Online]
http://eng.kremlin.ru/acts/4246 [English] [Retrieved 2014-08-30]
366

United Nations Human Rights Council, Study of the Human Rights Council Advisory Committee on
promoting human rights and fundamental freedoms through a better understanding of traditional values,
A/HRC/22/71, para. 76
367

VDPA, para. 5

56

the need for all stakeholders, including States, to work towards [] 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.368
States double-standards are spotlighted in the debate between cultural relativism and
universality of human rights. For example, speaking on behalf of the OIC against the
resolution on SOGI, Pakistan argued that the term sexual orientation is vague, misleading,
undefined and has no legal foundation in international law.369 This author argues however that
this statement is false. Article 1 of the UDHR states that [a]ll human beings are born free and
equal in dignity and rights370 while the Yogakarta Principles outline the application of
international human rights law in relation to SOGI.371 In corollary, the UN has frequently
addressed killings of persons because of their sexual orientation in the framework of
international human rights law.372 The statement by OIC is particularly interesting since
several of its Member States including Bangladesh, Djibouti, Indonesia, Kyrgyzstan and
Saudi Arabia voted in favour of resolutions on traditional values373 which indeed are vague
and not mentioned in human rights instruments. The final study of the Advisory Committee
pointed out that these resolutions lacked an agreed definition.374 As a counter-charge,
selective references to Article 5375 of VDPA remain unconvincing.376

368

Ibid., para. 38

369

United Nations Human Rights Council, Statement on behalf of the OIC states on a panel discussion on
discrimination and violence based on sexual orientation and gender identity, 19th session of the Human
Rights Council, 7th March, 2012, para. 2
370

UDHR, Article 1

371

International Commission of Jurists, Yogyakarta Principles - Principles on the application of international


human rights law in relation to sexual orientation and gender identity, March 2007
372

See for example UNGA, Discriminatory laws and practices and acts of violence against individuals based on
their sexual orientation and gender identity, A/HRC/19/41, paras. 24-27; UNGA resolution, Extrajudicial,
summary or arbitrary executions, A/RES/65/208, para. 6(b), 2010
373

See chapter 3.1.1

374

United Nations Human Rights Council, Study of the Human Rights Council Advisory Committee on
promoting human rights and fundamental freedoms through a better understanding of traditional values,
A/HRC/22/71, para. 7
375

VDPA, para. 5; The full Article reads [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

57

The Committee supervising ICEDAW have when deemed necessary reminded States Parties
to take steps without delay to combat discriminatory cultural patterns377 and to urgently take
all appropriate measures to eliminate HCP. 378 With regards to the element of progressive
realisation in ICESCR, its supervising Committee does not draw on this notion in relation to
HCP. On the contrary, guided by the obligation of States Parties to immediately adhere to the
inherent non-discrimination provision of the duty to respect, protect and fulfil rights in the
Covenant,379 the Committee has reminded State Parties of the immediate duty to fulfil Article
3, to immediately ensure de jure non-discrimination of any kind and to eliminate harmful
traditional practices.380 Progressive realisation has thus not restricted the Committee in firmly
rejecting HCP. As demonstrated above, both CEDAW and CESCR have dismissed appeals to
reservations and limitations on the rights contained in the respective instruments on the basis
of cultural, custom, religious or traditional convictions. The Committees are frequently
unimpressed with measures taken to combat HCP and urge States Parties to accelerate their
efforts,381 alternatively, measures have been adopted but widespread discrimination remains

their political, economic and cultural systems, to promote and protect all human rights and fundamental
freedoms.] For selective references to the first part [the significance of national and regional particularities and
various historical, cultural and religious backgrounds must be borne in mind] see footnote 372.
376

See for example United Nations Human Rights Council, Statement on behalf of the OIC states on a panel
discussion on discrimination and violence based on sexual orientation and gender identity, 19th session of the
Human Rights Council, 7th March, 2012, para. 5; United Nations Human Rights Council, Statement by His
Excellency Silvano M. Tomasi, Permanent Observer of the Holy See to the United Nations and Other
International Organizations in Geneva, Item 3, General Debate and Panel Discussion on discriminatory laws
and practices and acts of violence against individuals based on their Sexual Orientation and Gender Identity,
19th session of the Human Rights Council, 7th March, 2012 [Online]
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/19thSession/OralStatements/37.%20Holy%20
See.pdf [Retrieved 2014-08-19]
377

See for example CEDAW, CO Ecuador, A/49/38, 13th session, 1994, para. 540; CEDAW, CO Gabon,
A/60/38(SUPP), 2005, paras. 49, 51, 55, 240; CEDAW, CO Malawi, CEDAW/C/MWI/CO/5, 2006, para. 20
378

CEDAW, CO Switzerland, A/58/38, 28-29th session, 2003, para, 119

379

CESCR, General Comment 14, para. 1

380

CESCR, CO Zambia, E/C.12/1/Add.106, 2005, para. 45

381

See for example CEDAW, CO Congo, CEDAW/C/COD/CO/6-7, 2013, para.20(b); CESCR, CO Cameroon,
E/C.12/CMR/CO/2-3*, 2012, para. 20

58

and must be addressed.382 Finally it must be noted that both Committees are silent on the risk
of orientalising cultures383 and potential HCP affecting boys and men.384

382

See for example CESCR, CO Albania, CEDAW/C/ALB/CO/3, 2010, para. 24; CEDAW, CO Norway,
Supplement No. 38 (A/58/38), 2003, para. 425
383

Human Rights Council, Intersections between culture and violence against women, Report of the Special
Rapporteur on violence against women, its causes and consequences, A/HRC/4/34, 2007, paras. 46-50
384

See for example Carpenter, Charli, R., Some Other Conceptual Problems: A Reply to Winter, Thompson and
Jeffreys Critique of the U.N.s Approach to Harmful Traditional Practices in International Journal of Feminist
Politics, Vol. 6, No. 2, 2004. [While this author does not subscribe to all claims made in this article, it raises an
interesting suggestion that the UN does not consider harmful cultural practices targeting men and boys including
sex-selective massacre, conscription, sexual violence in prisons, violence against gay men and socialization into
hegemonic masculinities as cultural practices or even harmful.]

59

5. Conclusion
It is deplorable that principal UN human rights bodies mandated to promote and protect
universal human rights have failed to employ a uniform approach to HCP. This dissertation
demonstrates that while the Council is heavily divided in its approach to HCP, CEDAW and
CESCR have consistently recommended States Parties to respective treaty to eliminate such
practices.
It is commendable that Council resolutions on womens human rights, FGM and child, early
and forced marriages have been adopted without a vote. However, it should be noted that
voting against elimination of FGM or child marriage would be equally impossible from a
political viewpoint as it would be to oppose womens human rights in the Council. In
addition, Council resolutions do not pose directly legal binding obligations which might work
as an incentive for some States to vote in favour of a resolution if the political cost not to do
so would be too significant. Resolutions on traditional values do not explicitly endorse HCP,
but through their opposition of the universality of human rights, they allow for States to
endorse HCP or opt out from acting against them. In the same vein, States opposing
resolutions that affirm the universal right not to be discriminated against on the basis of SOGI
are likely to not sufficiently act against HCP such as killings of persons because of their
sexual orientation. It is the position of the author that States seeking to divert from their
human rights obligations reject resolutions on SOGI and champion those on traditional values
either to justify or neglect human rights violations within their jurisdiction. Indeed the
language enshrined in resolutions on traditional values overtly champion cultural relativism
incompatible with universal human rights. Thus they challenge provisions of nondiscrimination and pose a real danger to the universal enjoyment of human rights, in particular
in relation to vulnerable groups and those advocating for their rights.
Will cultural relativism be allowed to dilute the universality of human rights that the body is
intended to promote and protect or will the Council reclaim its mandate to champion universal
human rights? Ultimately, the future of the Council must be decided by its Member States.
They alone hold the power to select States to the body which uphold the highest human rights
standards. In order to add effective meaning to the duty of Council Member States to uphold
the highest standards, a welcome move would be if the Council were to operationalise the

60

highest standards to mean that Council Member States should subscribe to the personhood
approach. That would be a step towards ensuring that Council Member States upheld values
of autonomy and liberty while facilitating their citizens pursuit of a worthwhile life. As the
personhood approach champions universal human rights without invoking cultural
imperialism, States with different views on universalism should nonetheless be able to agree
to these standards. This approach would have the added value of aiding Council Member
States to heed the call to take into account the contribution to the promotion and protection of
human rights when voting for States that run for Council seats.
While the uniform approach employed by CEDAW and CESCR against HCP is
commendable, it must be noted that while they are tasked to supervise States Parties
compliance with instruments that critics insists stem from a western liberal tradition, it does
not fall within their respective mandates to advocate for certain cultural norms. However their
powers certainly allow them, which they indeed do, to express concern about HCP and call on
States Parties to eliminate them. It is disputable if their mandate permits the bodies not only to
demand States Parties to eliminate these practices, but also to seek to replace what they
perceive to be HCP with harmless cultural practices. A sign of an approach in this direction is
however found in the Concluding Observations to Albanias periodic report by the Committee
monitoring ICEDAW. It recommended that the State Party promotes positive cultural change
through media to achieve gender equality. Instead it could be argued that their suggestion
should have gone no further than recommending measures to achieve gender equality, thus
allowing Albania to choose the appropriate measures to achieve this goal. If the Committee
was unimpressed with measures taken, it would have the option to recommend that Albania
increase its efforts.
An approach which imposes cultural change could easily be interpreted as passing judgement
on certain cultures and would risk undermining the legitimacy and credibility of the work of
the treaty bodies, in particular it would increase the mistrust of the treaty body system among
States Parties that are less prone to subscribe to the universality of human rights. Ultimately,
this approach would work to the detriment of victims of HCP as some States Parties would be
likely to define this approach as cultural imperialism and interpret it as an incentive to
disengage their dialogue with treaty bodies. Therefore it is advisable that the Committees

61

strike the balance in favour of taking action against HCP rather than seeking to impose
harmless cultural practices. However, if the State Party in dialogue with a Committee
expresses a desire to change cultural norms incompatible with treaty rights, then the
Committee should of course aid them in this process and go further than simply
recommending elimination of HCP to also include, for example, recommendations of
alternative practices. In this view, when Kenya shared their efforts to promote alternative rites
of passage as a substitute for FGM, the Committee monitoring States Parties Compliance with
ICESCR was right in encouraging Kenya to continue to promote such alternative practices in
their Concluding Observations to the State Partys periodic report.385
In relation to Concluding Observations, it would be in the interest of treaty bodies to examine
if a pattern can be revealed as to what has been the deciding factors in instances when a
Committee, after expressing concern about HCP in a given State, has not deemed it necessary
to repeat this concern as a part of the Concluding Observations to the subsequent periodic
report. It is clearly the case that a multitude of circumstances affect States Parties
considerations in relation to HCP. Nonetheless, if best practices to combat HCP could be
deduced from the dialogue between treaty bodies and States Parties they would be valuable
for the UN human rights system to draw on. In order to increase the legitimacy of best
practices it is essential that potential HCP targeting boys and men are considered as well as
measures to avoid orientalising cultures. At the same time it is imperative that this process is
guided by the universality of human rights in order to not allow it to be undermined by
appeals to cultural relativism. The treaty bodies must uphold universal human rights without
orientalising cultures in order to succeed with this endeavour.
Future research must aim at including all UN human rights mechanisms to examine if they are
credible drivers for universal human rights as it is crucial that the UN unequivocally
contributes to eliminate HCP. Studies on how the UN could effectively draw on lessons learnt
from regional and national human rights mechanisms, and civil society organisations that
have addressed HCP would also constitute a welcome addition to the field.

385

See chapter 3.2.1 for documentation on Albania and chapter 3.2.2 for Kenya.

62

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United Nations Human Rights Council, Report of the United Nations High Commissioner for Human Rights:
Summary of information from States Members of the United Nations and other relevant stakeholders on best
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human dignity, A/HRC/24/22, 2013
United Nations Human Rights Council, Report of the United Nations High Commissioner for Human Rights:
Workshop on traditional values of humankind, A/HRC/16/37, 2010
World Health Organisation, Global and Regional Estimates of Violence Against Women: Prevalence and Health
Effects of Intimate Partner Violence and Non-partner Sexual Abuse, 2013

United Nations General Assembly and Human Rights Council resolutions


United Nations General Assembly resolution, Human Rights Council, A/res/60/251, 2006
United Nations General Assembly resolution, Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights: resolution / adopted by the General Assembly, A/RES/63/117, 5 March 2009
United Nations Human Rights Council resolution, Accelerating efforts to eliminate all forms of violence against
women, Resolution 11/2, 2009
United Nations Human Rights Council resolution, Accelerating efforts to eliminate all forms of violence against
women, A/HRC/26/15, 2014
United Nations Human Rights Council resolution, Accelerating efforts to eliminate all forms of violence against
women, Resolution 11/2, 2009; Most recent edition A/HRC/26/L.26/Rev.1, 2014
United Nations Human Rights Council resolution, Elimination of discrimination against women,
A/HRC/RES/12/17, 2009
United Nations Human Rights Council resolution , Elimination of discrimination against women, A/HRC/26/5,
2014
United Nations Human Rights Council resolution , Elimination of discrimination against women,
A/HRC/26/L.12, 2014
United Nations Human Rights Council resolution, High-level panel on the identification of good practices in
combating female genital mutilation, A/HRC/DEC/24/117, 2013
United Nations Human Rights Council resolution, Human rights, sexual orientation and gender identity,
A/HRC/RES/17/19, 2011

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United Nations Human Rights Council resolution, Human rights, sexual orientation and gender identity,
A/HRC/RES/17/L.9/Rev.1, 2011
United Nations Human Rights Council resolution, Integrating the human rights of women throughout the United
Nation system, Resolution 6/30, 2007
United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms through a
better understanding of traditional values of human kind, A/HRC/12/21, 2009
United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms through a
better understanding of traditional values of human kind, A/HRC/12/L.13/Rev.1, 2009
United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms through a
better understanding of traditional values of human kind, A/HRC/RES/16/3, 2011
United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms through a
better understanding of traditional values of human kind, A/HRC/16/L.6, 2011
United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms through a
better understanding of traditional values of humankind: best practices, A/HRC/RES/21/3, 2012
United Nations Human Rights Council resolution, Promoting human rights and fundamental freedoms through a
better understanding of traditional values of humankind: best practices, A/HRC/RES/21/L.2, 2012
United Nations Human Rights Council resolution, Strengthening efforts to prevent and eliminate child, early and
forced marriage: challenges, achievements, best practices and implementation gaps, A/HRC/RES/24/23, 2013

United Nations Treaty Body Documents


CEDAW, CO Albania, A/58/38, 28th-29th session, 2003
CEDAW, CO Albania, CEDAW/C/ALB/CO/3, 2010
CEDAW, Concluding Observations (CO) Burundi, CEDAW/C/BDI/CO/4, 2008
CEDAW, CO Burundi, CEDAW/C/BDI/CO/4, 2008
CEDAW, CO Cambodia, CEDAW/C/KHM/CO/3, 2006
CEDAW, CO China, A/54/38/Rev.1, 1999
CEDAW, CO China, CEDAW/C/CHN/CO/6, 2006

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CEDAW, CO Congo, A/58/38, 28th session, 2003


CEDAW, CO Congo, CEDAW/C/COD/CO/6-7, 2013
CEDAW, CO Cook Islands, CEDAW/C/COK/CO/1, 2007
CEDAW, CO Denmark, A/57/38 (Part II), 27th session, 2002
CEDAW, CO Denmark, CEDAW/C/DEN/CO/7, 2009
CEDAW, CO Ecuador, A/49/38, 13th session, 1994
CEDAW, CO Fiji, A/57/38 (Part I), 26th session, 2002
CEDAW, CO Gabon, A/60/38(SUPP), 2005
CEDAW, CO India, CEDAW/C/IND/CO/3, 2007, para. 10
CEDAW, CO Indonesia, CEDAW/C/IDN/CO/5, 2007
CEDAW, CO Indonesia, CEDAW/C/IDN/CO/6-7, 2012
CEDAW, CO Israel, CEDAW/C/ISR/CO/3, 2005
CEDAW, CO Malawi, CEDAW/C/MWI/CO/5, 2006
CEDAW, CO Morocco, A/52/39/Rev.1, CEDAW 16th session, 1997
CEDAW, CO Nigeria, A/53/38, 19th session, 1998
CEDAW, CO Nigeria, CEDAW/C/NGA/CO/6, 2008
CEDAW, CO Norway, A/58/38, 28-29th session, 2003
CEDAW, CO Norway, CEDAW/C/NOR/CO/8, 2012
CEDAW, CO Panama, CEDAW/C/PAN/CO/7, 2010
CEDAW, CO Saudi Arabia, CEDAW/C/SAU/CO/2, 2008
CEDAW, CO Switzerland, A/58/38, 28th-29th session, 2003
CEDAW, CO Switzerland, CEDAW/C/CHE/CO/3, 2009
CEDAW, CO Turkey, A/52/38, 16th session, 1997
CEDAW, CO Vanuatu, CEDAW/C/VUT/CO/3, 2007

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CEDAW, General Recommendations Nos. 2, 3 and 4, adopted at the Sixth Session, 1987 (contained in
Document A/42/38), 1987
CEDAW, General Recommendation No. 25, on Article 4, paragraph 1, of the Convention on the Elimination of
All Forms of Discrimination against Women, on temporary special measures, HRI/GEN/1/Rev.7, 2004
CEDAW, General statement on the Impact of Reservations, 19th session, 1998
CEDAW, Initial Report of States Parties, Fiji Islands, CEDAW/C/FJI/1, 2000, (Part II), para. 1.8
CEDAW, Summary record of the 530th meeting, CEDAW/C/SR.530, 2002, paras. 29, 35, 37
CEDAW, Summary record of the 538th meeting, CEDAW/C/SR.530, 2002, para. 7
CEDAW, Summary record of 815th meeting, CEDAW/C/SR.815, 2008, para. 20, 64
CEDAW, Fatma Yildirim (deceased) v Austria, Communication No. 6/2005, CEDAW/C/39/D/6/2005*, 2007
CEDAW, Ms AT v Hungary, CEDAW Communication No 2/2003, CEDAW /C/32/D/2/2003, 2005
CEDAW, Sahide Goekce v Austria, CEDAW Communication no 5/2005, CEDAW/C/39/D/5/2005, 2007
CEDAW, Vertido v he Philippines, CEDAW Communication No/18/2008, CEDAW/C/46/D/18/2008, 2010
CESCR, CO Australia, E/C.12/AUS/CO/4, 2009
CESCR, CO Austria, E/C.12/AUT/CO/4, 2013
CESCR, CO Belgium, E/C.12/1/Add.54, 2000
CESCR, CO Benin, E/C.12/1/Add.78, 2002
CESCR, CO Benin, E/C.12/BEN/CO/2, 2008
CESCR, CO Cameroon, E/C.12/1/Add.40, 1999
CESCR, CO Cameroon, E/C.12/CMR/CO/2-3*, 2012
CESCR, CO Democratic Republic of Congo, E/C.12/COD/CO/4, 2009
CESCR, CO Denmark, E/C.12/1/Add.102, 2004
CESCR, CO Finland, E/C.12/FIN/CO/5, 2008
CESCR, CO France, E/C.12/1/Add.72, 2001

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CESCR, CO France, E/C.12/FRA/CO/3, 2008


CESCR, CO Germany, E/C.12/1/Add.29, 1998
CESCR, CO Iceland, E/C.12/ISL/CO/4, 2012
CESCR, CO Iran, E/C.12/1993/7, 1993
CESCR, CO Kenya, E/C.12/KEN/CO/1
CESCR, CO Liechtenstein, E/C.12/LIE/CO/1, 2006
CESCR, CO Libya, E/C.12/1/Add.15, 1997
CESCR, CO Morocco, E/C.12/1994/5, 1994
CESCR, CO Nepal, E/C.12/1/Add.66, 2001
CESCR, CO Nepal, E/C.12/NPL/CO/2, 2008
CESCR, CO New Zealand, E/C.12/NZL/CO/3, 2012
CESCR, CO Nigeria, E/C.12/1/Add.23, 1998
CESCR, CO Norway, E/C.12/NOR/CO/5, 2012
CESCR, CO Portugal, E/C.12/1/Add.53, 2000
CESCR, CO Sweden, E/C.12/SWE/CO/5, 2008
CESCR, CO Switzerland, E/C.12/CHE/CO/2-3, 2010
CESCR, CO Zambia, E/C.12/1/Add.106, 2005
CESCR, CO Zimbabwe, E/C.12/1/Add.12, 1997
CESCR, General Comment 3, The nature of States parties' obligations (Fifth session, 1990), U.N. Doc.
E/1991/23, annex III at 86 (1991),reprinted in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 14, 2003
CESCR, General Comment 9, The domestic application of the Covenant, E/C.12/1998/24, 1998
General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N.
Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations

73

Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 85, (CESCR, General Comment 14)
2003
CESCR, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic,
Social and Cultural Rights (Art. 3 of the Covenant), 11 August 2005, E/C.12/2005/4, 2005
CESCR, General Comment 18, Article 6: the equal right of men and women to the enjoyment of all economic,
social and cultural rights (35th session, 2006), U.N. Doc. E/C.12/GC/18, 2006, para. 33
CESCR, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), U.N. Doc.
E/C.12/GC/21, 2009
CESCR, Poverty and the International Covenant on Economic, Social and Cultural Rights, E/C.12/2001/10,
2001
CESCR, Replies by the Government of Kenya to the list of issues (E/C.12/KEN/Q/1) to be taken up in connection
with the consideration of initial report of Kenya (E/C.12/KEN/1), E/C.12/KEN/Q/1/Add.1, 2008

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