A/67/287
52. Legal pluralism can be problematic when communal or tribal courts or
community elders are authorized to apply or implement “traditional” or “customary”
values, norms and practices. The negative “impact of multiple legal systems, with
discriminatory customary and religious laws and practice”, on women was noted,
for example, at the 15-year review of the Beijing Declaration and Platform for
Action, held in 2010. However, a stereotypical approach may be unconsciously
applied even within integrated singular legal systems.
53. It is worth noting in this respect that some constitutional frameworks
providing for legal plurality have managed to institute a fairer balance between
gender equality and recognizing cultural and religious identities. For example, South
Africa recognizes the validity of traditional authorities and the right to enjoy and
practise one’s own culture, but enables these to be challenged under the South
African Bill of Rights. The Constitution of Ghana recognizes a right to practise
one’s culture while prohibiting customary practices that dehumanize or injure the
physical or mental well-being of any person. The Constitution of Uganda,
addressing the tension between women’s rights (art. 33) and the right to practise
culture (art. 37), explicitly prohibits “laws, cultures, customs or traditions which are
against the dignity, welfare or interest of women or which undermine their status”
(art. 33 (6)).
54. The Special Rapporteur notes that despite her research, she was not able to
gather sufficient information on best practices developed at the national level, both
by governmental authorities and non-governmental actors, to enhance the realization
of the cultural rights of women on an equal basis with men. She fears that this, in
itself, reflects a general lack of interest in the issue, despite the enormous potential
that the realization of cultural rights has for women.
IV. Universality, equal cultural rights of women and
cultural diversity
A.
The pre-eminence of the principles of non-discrimination
and equality
55. Equality and non-discrimination on the basis of sex are paramount principles
in international and regional human rights law. States have the obligation under
international law to put an end to stereotypes that lie at the root of multiple
discriminations, as recognized in particular in article 5 of the Convention on the
Elimination of All Forms of Discrimination against Women.
56. It is essential to recall that international human rights norms provide a clear
negative answer to the question of whether restrictions on the cultural rights of
women, which ultimately amount to restrictions on the principles of
non-discrimination and equality, may be legitimately imposed under international
law to preserve cultural diversity.
57. International documents repeatedly stress that respect for cultural rights or
cultural diversity may not undermine the universality of human rights since these
rights belong to all persons, without any discrimination. Most importantly, the
Vienna Declaration and Programme of Action, in Part I, paragraph 5, states: “While
the significance of national and regional particularities and various historical,
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