A/HRC/31/59
Programme of Action further reaffirms that “all human rights are universal, indivisible and
interdependent and interrelated.”
25.
Moreover, cultural practices — or what are claimed to be cultural practices — must
evolve when they constitute or lead to discrimination against women, including genderbased violence. Under article 5 (a) of the Convention on the Elimination of All Forms of
Discrimination against Women, States are required to take all appropriate measures to
modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women. Similarly, the cultural explanations sometimes offered in the past
for systematic racial discrimination or slavery are recognized as entirely incompatible with
contemporary notions of human dignity. The Universal Declaration on Cultural Diversity
(art. 4), further stresses that no one may invoke cultural diversity to infringe upon human
rights guaranteed by international law, nor to limit their scope. Therefore, not all cultural
practices can be considered as protected in international human rights law and cultural
rights may be subjected to limitations in certain circumstances.
26.
The Special Rapporteur notes in this respect that, as stressed by the Committee on
Economic, Social and Cultural Rights, limitations should be a last resort only and should be
in accordance with certain conditions as established under international human rights law.
Such limitations must pursue a legitimate aim, be compatible with the nature of this right
and be strictly necessary for the promotion of general welfare in a democratic society, in
accordance with article 4 of the International Covenant on Economic, Social and Cultural
Rights. Any limitations must therefore be proportionate, meaning that the least restrictive
measures must be taken when several types of limitations may be imposed. The Committee
also stressed the need to take into consideration existing international human rights
standards on limitations that can or cannot be legitimately imposed on rights that are
intrinsically linked to the right to take part in cultural life, such as the rights to privacy, to
freedom of thought, conscience and religion, to freedom of opinion and expression, to
peaceful assembly and to freedom of association (see the Committee’s general comment
No. 21, para. 16).
27.
It is perhaps useful at this juncture to recall what cultural rights are not. They are not
tantamount to cultural relativism. They are not an excuse for violations of other human
rights. They do not justify discrimination or violence. They are not a licence to impose
identities or practices on others or to exclude them from either in violation of international
law. They are firmly embedded in the universal human rights framework. Hence, the
implementation of human rights must take into consideration respect for cultural rights,
even as cultural rights themselves must take into consideration respect for other universal
human rights norms. This is the holistic vision of the Special Rapporteur, carrying on from
that of her predecessor. She recalls article 5 (1) common to both of the covenants on human
rights, which is all too often overlooked: “nothing in the present Covenant 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 or freedoms recognized
herein”.
28.
While observing that reference to culture, religion and tradition has often been
wrongly used to justify discrimination, Ms. Shaheed proposed a paradigm shift: from
viewing culture as an obstacle to women’s rights to emphasizing the need to ensure
women’s equal enjoyment of cultural rights. It is important to ensure the right of all women
to access, participate in and contribute to all aspects of cultural life, including in identifying
and interpreting cultural heritage and deciding which cultural traditions, values or practices
are to be kept intact, modified or discarded altogether, and to do so without fear of punitive
action.
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