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Framework for Communications - III 1


VULNERABLE GROUPS

1. Women

ICCPR

Art. 5 (1): "Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant."

Art. 18 (3): "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

CEDAW

Art. 2: "States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women."

Art. 3: "States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men."

ICESCR

Art. 2 (2): "The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

1981 Declaration of the General Assembly

Art. 8: "Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the UDHR and the Covenants;".

Commission on Human Rights resolution 2005/40

5.b: In which the Commission on Human Rights invites the Special Rapporteur to address situations of violence and discrimination that affect many women as a result of religion or belief.

14: The Commission on Human Rights, "Stresses the need for the Special Rapporteur to continue to apply a gender perspective, inter alia through the identification of gender specific abuses, in the reporting process, including in information collection and in recommendations;".

Human Rights Council resolution 6/37

9. Urges States […] "(c) To ensure that appropriate measures are taken in order to adequately and effectively guarantee the freedom of religion or belief of women […]";

11. "Invites all actors to address in the context of that dialogue, inter alia, the following issues within the framework of international human rights: […] (b) The situations of violence and discrimination that affect many women as well as individuals from other vulnerable groups in the name of religion or belief or due to cultural and traditional practices;"

12. "Emphasizes the importance of a continued and strengthened dialogue among and within religions or beliefs, at all levels and with a broader participation including of women, to promote greater tolerance, respect and mutual understanding";

18. "Decides therefore to extend the mandate of the Special Rapporteur on freedom of religion or belief for a further period of three years and, in this context, invites the Special Rapporteur: […] (d) To continue to apply a gender perspective, inter alia, through the identification of gender-specific abuses, in the reporting process, including in information collection and in recommendations".

Human Rights Committee general comment 28

Para. 13: "States parties should provide information on any specific regulation of clothing to be worn by women in public. The Committee stresses that such regulations may involve a violation of a number of rights guaranteed by the Covenant, such as: article 26, on non-discrimination; article 7, if corporal punishment is imposed in order to enforce such a regulation; article 9, when failure to comply with the regulation is punished by arrest; article 12, if liberty of movement is subject to such a constraint; article 17, which guarantees all persons the right to privacy without arbitrary or unlawful interference; articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim."

Para. 19: "The right of everyone under article 16 to be recognized everywhere as a person before the law is particularly pertinent for women, who often see it curtailed by reason of sex or marital status. This right implies that the capacity of women to own property, to enter into a contract or to exercise other civil rights may not be restricted on the basis of marital status or any other discriminatory ground. It also implies that women may not be treated as objects to be given, together with the property of the deceased husband, to his family. States must provide information on laws or practices that prevent women from being treated or from functioning as full legal persons and the measures taken to eradicate laws or practices that allow such treatment."

Para. 21: "States parties must take measures to ensure that freedom of thought, conscience and religion, and the freedom to adopt the religion or belief of one's choice - including the freedom to change religion or belief and to express one's religion or belief - will be guaranteed and protected in law and in practice for both men and women, on the same terms and without discrimination. These freedoms, protected by article 18, must not be subject to restrictions other than those authorized by the Covenant and must not be constrained by, inter alia, rules requiring permission from third parties, or by interference from fathers, husbands, brothers or others. Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion; States parties should therefore provide information on the status of women as regards their freedom of thought, conscience and religion, and indicate what steps they have taken or intend to take both to eliminate and prevent infringements of these freedoms in respect of women and to protect their right not to be discriminated against."

[Go back to the Framework for communications]

Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

E/CN.4/2002/73/Add.2

Thematic study entitled " Study on freedom of religion or belief and the status of women in the light of religion and traditions".

A/56/253, paras. 139-147:

"Follow-up to resolutions on women

139. The Commission on Human Rights and the General Assembly have always accorded special attention to the situation of women with regard to religion in their resolutions governing the mandate on the freedom of religion and belief. Accordingly, the resolutions have condemned practices which violate women's rights and constitute discrimination, with some resolutions emphasizing the harmful role played in that regard by religious extremism. Resolutions have also echoed the Vienna World Conference on Human Rights in its call upon all Governments to take all appropriate measures in compliance with their international obligations and with due regard to their respective legal systems to counter intolerance and related violence based on religion or belief, including practices of discrimination against women.

140. Since 1996, the Commission in its resolutions on the mandate on the freedom of religion and belief has furthermore emphasized that the Special Rapporteur should incorporate a gender perspective in the preparation of reports, including in data collection and the formulation of recommendations, and highlight genderspecific violations. Resolutions not specific to the mandate have also requested all special procedures to adopt a similar approach, for example, Commission on Human Rights resolution 2001/50 of 24 April 2001, on integrating the human rights of women throughout the United Nations system.

141. Accordingly, in the framework of his general reports, the Special Rapporteur, in his review of communications, has created a category devoted to violations against women. The status of women with regard to religion has clearly, however, been an ongoing concern of the Special Rapporteur since the creation of the mandate in 1988, as demonstrated both in communications concerning cases or situations involving intolerance or discrimination against women, and in mission reports (through the examination of legislation, policies affecting women, a review of their situation, and the formulation of recommendations (see above, section II.A)). The Special Rapporteur also appeared before the Committee on the Elimination of Discrimination against Women in February 1998 to outline his approach to the status of women with regard to religion and to engage in an exchange of views. He also focused on this vulnerable group in the context of the international consultative conference on school education in relation to freedom of religion and belief, tolerance and non-discrimination in Madrid (see section III.A).

142. In the two studies submitted to the World Conference against Racism (see section III.A), the Special Rapporteur focused on the status of women. The Special Rapporteur will also submit to the Commission on Human Rights at its next session a study on freedom of religion or belief and the status of women with regard to religion and traditions - currently being edited.

143. In the study, the Special Rapporteur explains that norms inherited from our ancestors and our past tend in all religions to discriminate against women. As one author Katarina Tomasevski points out, we tend to label such norms as "part of the culture" and to accept their discriminatory aspects. When practices or norms that are discriminatory against women are based on or imputed to religion this excuse is considered exculpatory for in such cases there can be no discussion. From the point of view of the victims of such discrimination, however, our behaviour may not appear quite as respectable as we might wish.

144. This study reveals that there are many cultural practices - some similar or comparable, some different - to be found among several peoples having many diverse religious traditions. A number of these practices are contrary to religious teaching. Many religions have combated cultural practices which undermine the status of women. They have managed either to abolish such practices, or to indicate the path to be followed, by limiting abuses, regulating some and tolerating others, but always taking into account constraints and resistance to change in various societies, localities and eras. In order to take account of this process that is driven and initiated by religions, and also interrelationships between cultures and religions and, consequently, the requirement of the universality of the rights of women, the responsibility of States and the international community is vital.

145. Any policy must take the cultural dimension into account; it is possible to modify negative cultural practices, regardless of whether or not they have a religious basis, without undermining the cultural specificities of peoples or the requirement of universality of human rights. However, it must always be borne in mind that the task is complicated by the fact that it is not merely a question of combating laws, regulations and policies, but also of combating cultural practices that are rooted in collective memory and in the deep ancestral beliefs of people, including women themselves, and that, sometimes these harmful practices, although often contrary to religions, are perpetuated in the name of religion, or imputed to religion.

146. Not all traditions are equally valid, and those which run counter to human rights must be combated. It is essential to distinguish between tolerance, which is necessary, and blind acceptance of customs which may involve degrading treatment or blatant violations of human rights. In order to ensure that freedom of religion does not undermine women's rights, it is vital that the right to difference which that freedom implies should not be interpreted as a right to indifference to the status of women. As Eleanor Roosevelt said, "Where, after all, do human rights begin? In small places, close to ".

147. Lastly, the Special Rapporteur reiterates his recommendation that all relevant United Nations mechanisms should formulate and adopt a plan of action to combat discrimination against women imputed to religions and traditions."

E/CN.4/2004/63, paras. 138-141:

"138. Since 1996, the Commission has requested in its resolutions on freedom of religion or belief that the Special Rapporteur should, in preparing his reports, take women into consideration and bring out gender-specific abuses. The Special Rapporteur has accordingly introduced a category into his general reports, in the section on the analysis of communications, on violations affecting women.

139. The Special Rapporteur also addressed the Committee on the Elimination of Discrimination against Women in February 1998 in order to set out his approach to the situation of women with reference to religion and to initiate exchanges of views; he gave particular attention to this vulnerable group in the context of the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination. In the two studies he submitted to the Preparatory Committee of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, the Special Rapporteur also drew attention to the situation of women.

140. Lastly, at the fifty-eighth session of the Commission, the Special Rapporteur submitted a study on freedom of religion or belief and the situation of women vis-à-vis religion and traditions (E/CN.4/2002/73/Add.2).

141. The Special Rapporteur has on several occasions recommended that the relevant United Nations mechanisms as a whole should prepare an action plan to deal with discrimination affecting women that can be imputed to religions and traditions."

A/HRC/4/21, paras. 34-39:

"A. Vulnerable situation of women

34. Since 1996, the Commission on Human Rights has persistently stressed in its resolutions the need for the Special Rapporteur to apply a gender perspective, inter alia, through the identification of gender-specific abuses in the reporting process, including in information collection and recommendations. Although some countries initially have been reluctant to see the nexus between the discrimination of women and the mandate of the Special Rapporteur on freedom of religion or belief, it is now accepted that the mandate-holder will raise cases or highlight situations that relate to the status of women. Furthermore, resolution 2005/40 of the Commission on Human Rights explicitly invited the Special Rapporteur to address "the situations of violations and discrimination that affect many women as a result of religion or belief".

35. The Special Rapporteur regularly sends joint urgent appeals and allegation letters on this issue together with other special procedures holders, such as the Special Rapporteur on violence against women, its causes and consequences as well as the Special Rapporteur on trafficking in persons, especially women and children. The above-mentioned framework for communications contains a subcategory devoted to the vulnerable situation of women. This subcategory details the applicable international human rights standards, e.g. articles 2 and 3 of the Convention on the Elimination of All Forms of Discrimination against Women and Human Rights Committee general comment No. 28 (2000) on the equality of rights between men and women.

36. In practice, intolerance and discrimination is often applied with regard to multiple identities of the victim or group of victims. Many of the Special Rapporteur's communications and urgent appeals concern cases where women suffer from aggravated discrimination with regard to their religious, ethnic and sexual identities. Women in many countries appear to be victims of double or triple forms of aggravated discrimination, owing to serious restrictions in the areas of education and employment. Citizenship laws in a number of countries discriminate against women and their children because these regulations stipulate that mothers have fewer rights than fathers to transmit nationality. Denying girls and women the right to wear religious symbols when they freely choose to do so may pose a problem in terms of international human rights law as well as does the forcible imposition of religious dress codes. Discrimination and practices that are harmful to the health of women and girls are also applied within their religious communities for reasons of religious traditions or those ascribed to religion. Furthermore, there have been reports of arrests, flogging, forced conversion and even murders targeted specifically at women in the context of intolerance based on religion or belief. Female members of minority religions also tend to be prone to become victims of rape and violence stirred up by organized groups.

37. The freedom of religion or belief is a fundamental human right of a non-derogable character which can be limited only under restricted conditions. Nevertheless, this right, like other human rights, cannot be used to justify the violation of other human rights and freedoms. That clause is, inter alia, provided by article 5 (1) of the International Covenant on Civil and Political Rights and may, in certain cases, address situations of abuses committed in the name of religion. The Human Rights Committee in its general comment No. 28 states that "Article 18 [of the ICCPR] may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion; States parties should therefore provide information on the status of women as regards their freedom of thought, conscience and religion, and indicate what steps they have taken or intend to take both to eliminate and prevent infringements of these freedoms in respect of women and to protect their right not to be discriminated against." (para. 21)

38. The States' capacity and willingness to guarantee and protect de jure and de facto freedom of religion of all individuals within its jurisdiction is often the key to developing an appropriate framework for the protection of all human rights, including women's rights. It ensures that individuals can express themselves fully and dissent, even within their own religion; or, indeed, that they can choose not to have any religion at all. No right should be protected at the expense of others. Measures adopted to protect women's rights, the right to freedom of religion or belief and other human rights should take into account all individuals in society. The Special Rapporteur would like to reiterate the importance of ensuring that the right to freedom of religion or belief adds to the values of human rights and does not unintentionally become an instrument for undermining freedoms. In this regard she welcomes recent statements and conference recommendations [See the recommendations of the international conference of scholars concerning a ban on abuse of the female body which was held 22-23 November 2006 at Al-Azhar University in Cairo, Egypt (available online at: http://www.target-human-rights.com/HP 00_aktuelles/alAzharKonferenz/index.php?p=beschluss&lang=en). For a discussion of female genital mutilation see Amor's thematic study on freedom of religion or belief and the status of women from the viewpoint of religion and traditions (E/CN.4/2002/73/Add.2, paras. 104-110).] which clarify religious views on female genital mutilation.

39. In 2002, the previous mandate-holder presented his thematic study entitled "Étude sur la liberté de religion ou de conviction et la condition de la femme au regard de la religion et des traditions" to the Commission on Human Rights (E/CN.4/2002/73/Add.2). It lists the different types of discrimination against women, such as practices that are harmful to the health of women, discrimination against women within the family, attacks on the right to life, honour killings, and attacks on their dignity, such as restrictions on the education of women or their exclusion from certain functions. The document is so far only available in the original French language version and the Special Rapporteur would like to reiterate the request by the Commission on Human Rights in resolution 2004/36 that "from existing available resources and if necessary supplemented by voluntary contributions, the [study should] be translated into the other official languages of the United Nations and published as an official document"."

A/65/207, paras. 14-16 and 69:

"Women and freedom of thought, conscience and religion or belief

14. There are a number of practices that discriminate against women or are harmful to their health, such as female genital mutilation, infanticide, cruelty to widows, honour killings and discriminatory personal status laws. Many of the practices are attributable mainly to cultural interpretations of religious precepts or even conflict with the prescriptions of religions. However, certain harmful practices are claimed by religious leaders, communities or States as a religious duty by which they and their ancestors have been bound since time immemorial. All this makes it particularly difficult to challenge and adequately address such harmful practices.

15. The mandate has addressed these issues in communications to Governments, thematic reports and during country missions. [See E/CN.4/2002/73/Add.2; A/64/159, paras. 59-63; and A/HRC/10/8, paras. 25-28.] The Special Rapporteur has recommended enacting legislation to eliminate discriminatory or harmful practices and repealing laws that infringe the rights of women. With regard to female genital mutilation, for example, States should penalize those performing such harmful practices and provide assistance in securing alternative sources of income for practitioners, for example as birth attendants. In terms of preventive domestic measures, States should be encouraged to develop legal literacy and training strategies at all levels of society, with the aim of altering discriminatory cultural norms and attitudes. In this context, dialogue between the authorities and religious leaders and other members of society, including medical practitioners, political leaders, education authorities and the media, is an important prevention measure.

16. States should take effective and necessary steps to ensure enjoyment by women of their rights to equality before the law and equal protection of the law. States should adopt appropriate measures to provide criminal law protection for women against violence stemming from traditional cultural practices that pose a threat to their health and lives. With a view to achieving lasting improvements, action to eliminate violence against women should not only target the effects of the phenomenon but also its root causes. In addition, States should strengthen monitoring mechanisms, official bodies and civil society institutions which play a role in the protection and promotion of women’s rights, in the light of harmful cultural practices. States should also be encouraged to withdraw reservations on religious grounds which may adversely affect or restrict international legal instruments concerning the protection of the status of women, in particular the Convention on the Elimination of All Forms of Discrimination against Women. […]

69.The Special Rapporteur strongly believes that the mandate needs to continue highlighting discriminatory practices that women have had to suffer over the centuries and continue to do so, sometimes in the name of religion or within their religious community. It can no longer be taboo to demand that women’s rights take priority over intolerant beliefs that are used to justify gender discrimination. During the Special Rapporteur’s missions and interaction with religious leaders she has been repeatedly told that most religions recognize gender equality. Yet, religious zealots and their followers often launch campaigns to discriminate against women rather than support gender equality. Many women are denied basic rights of equality within the most fundamental social unit, the family. In a number of countries, such denial of their rights is supported by discriminatory legislation and justified in the name of religion or tradition. There can never be true gender equality in the public arena if women continue to be oppressed by the weight of discrimination within their homes, all too often in the name of divine sanction."

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